CITATION: R v. Ennis-Taylor, 2017 ONSC 5797
COURT FILE NO.: CRIMJ(P) 1920/16
DATE: 2017 10 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
M. MacKenzie, Counsel for the Crown
APPLICANT
- and -
JAMALA ENNIS-TAYLOR
J. Filiberto, for the Accused
RESPONDENT
HEARD: September 25 and 26, 2017
REASONS FOR RULING ON EXPERT EVIDENCE
LEMAY J
[1] The accused, Jamala Ennis-Taylor, is charged with two counts of sexual assault, and one count of forcible confinement from incidents that allegedly took place in November of 2015. His trial is scheduled to proceed before a jury starting October 10th, 2017.
[2] The Crown seeks to call evidence from a proposed expert witness, Dr. Janine D’Anniballe, on how the human brain processes trauma, as well as how survivors of a sexual assault behave both during and after an assault. The Crown, therefore, is seeking to have Dr. D’Anniballe qualified as an expert in the neurobiology of trauma and the psychological and sociological responses of victims to sexual assault.
[3] A voir dire was held before me over two days, and the question is whether this evidence should be considered by the jury. For the reasons that follow, I find that the expert should not be permitted to testify.
The Proposed Expert
[4] Dr. D’Anniballe received a BSc. in psychology from the University of Dayton in 1989. She also received a PhD in Counselling Psychology from the University of Tennessee in 1996. She has been employed in Colorado since 1999, and became licensed in Colorado as a psychologist in 2001.
[5] She started her career working as a clinical psychologist, providing counselling to people for various issues. Early on in her career, Dr. D’Anniballe began to do a significant amount of work with victims of sexual assault. Dr. D’Anniballe started out as a clinician, and then worked as a clinical supervisor.
[6] In 1999, Dr. D’Anniballe was appointed as the Executive Director of Moving to End Sexual Assault (“MESA”), a non-profit organization based in Boulder that provides services for victims of sexual assault. Dr. D’Annibale remains responsible for supervising MESA, but also assumed additional responsibilities as the Director of Access, Emergency and Community Services for the Mental Health Centre. In this new role, Dr. D’Anniballe also has responsibility for two other trauma care teams.
[7] Dr. D’Anniballe has not done primary research or written papers in the areas that the Crown seeks to have her qualified as an expert. However, she has read extensively in the area of sexual assault.
[8] In addition to her work and her reading, Dr. D’Anniballe has presented at numerous seminars on sexual assault and violence, including for the National Judicial Education Program (“NJEP”). The NJEP is a federally funded organization in the United States that runs programs targeted towards the judiciary.
[9] Dr. D’Anniballe has also provided training to other justice system participants on all sides, including prosecutors, defence counsel and probation officers. Dr. D’Anniballe’s training has focused on debunking the myths around sexual assault. She has provided this training on a very regular basis over the last fifteen years, testifying that she has spoken at conferences and training sessions at least monthly over that time.
[10] Dr. D’Anniballe has also been qualified as an expert in her field over sixty (60) times in Colorado, both in criminal cases and, less often, in civil cases.
[11] The Crown seeks to qualify her as an expert in the neurobiology of trauma and the psychological and sociological responses of victims to sexual assault.
The Proposed Expert Evidence
[12] Dr. D’Anniballe has not met either the complainant or the accused in this case. As a result, she will only be providing general testimony, rather than any testimony specific to a witness or party.
[13] The evidence that the Crown wishes to lead divides itself into two halves. The first is evidence relating to the neurobiology of trauma, which would address both the behavior of the victim in the course of an assault, and memory issues that the victim might have after the assault. The second half relates to the post-assault behavior and emotional responses of victims to a sexual assault.
a) The Neurobiology of Trauma
[14] The Crown proposes to lead evidence from Dr. D’Anniballe about how the human brain processes traumatic events, as opposed to more normal events. In particular, the evidence would show that victims do not remember the details of an assault because the memories of traumatic events are stored in a different part of the brain, the amygdala, from regular events which are stored in the hippocampus.
[15] As a result of these memory storage issues, traumatic memories are often remembered and recounted in a non-liner and non-chronological manner. In addition, these memories are often recalled gradually over time, which means that victims may remember more details of the assault as time passes.
[16] In addition, there is the response of a victim during the assault. A common response is a “freeze” response, in which the victim does nothing about the assault. This happens because a victim of an assault is under intense fear and/or having a reaction caused by systems in the brain that prevent her/him from doing anything at all. Dr. D’Andiballe would testify that, if a victim of an assault does not try to fight or run away there may be less chance for injury, which is also part of why the victim will have a freeze response.
b) The Behavior and Emotional Responses of Victims
[17] The Crown proposes to lead evidence to show that victims of sexual assault often do not report the assault immediately to friends, family or law enforcement for a number of reasons, including shame, guilt, fear of retaliation from the perpetrator and other emotional reactions.
[18] In addition, victims of an assault may exhibit responses that appear to be counterintuitive to jurors. As set out in Dr. D’Anniballe’s summary of testimony, those responses include:
Finally, the other issues that could be addressed by my testimony include that of the victim’s emotional responses to a sexual assault. Experts (Herman, 1992; LeDray 1994) detail many examples of victims of interpersonal violence response that may appear counterintuitive to jurors. These common response include: failing to fight or physically resist the perpetrator during the assault, experiencing “frozen fight” during the assault, exhibiting no physical evidence of injury from the assault, delayed reporting to police, failing to recall or deliberately omitting specific details about the assault, denying or minimizing the assault to friends or family, exhibiting no apparent emotion expression following the abuse, providing apparent inconsistent statements about the assault at different points in time, having a relationship with the perpetrator prior to and/or after the assault. It is quite common for survivors of interpersonal violence to attempt self-destructive behaviours that could include: using alcohol or drugs, self-harming, and engaging in high-risk activities (e.g., criminal activity, promiscuity).
[19] During the course of the voir dire, Dr. D’Anniballe provided viva voce testimony on both of these areas, as well as being cross-examined on both her qualifications and her evidence.
The Context- Where Would the Expert Evidence Fit In?
[20] At this point, it is not yet known what evidence the complainant will provide at trial. Similarly, it is not yet known whether the accused will even testify at his trial. However, as part of the materials that were filed for this motion, I was provided with the transcript from the preliminary hearing, a transcript of the complainant’s statement to police and a summary of the case.
[21] The Crown alleges that the complainant was subject to two separate assaults. In the remainder of this section, I will set out the Crown’s allegations. I have made no findings of fact at this stage, and my summary should not be taken as a finding of fact. It is, however, based on the Crown’s summary of the case, the interview with the complainant and the complainant’s testimony at the preliminary inquiry.
[22] The complainant and the accused originally met through a website called Badoo. They agreed to meet for a drink. In the evening of November 11th, 2015, the accused picked the complainant up outside her residence in Brampton. The accused and the complainant went to a bar near where the accused lived in Scarborough, where they had a drink. They then went to the accused’s apartment, where the complainant had a couple of shots of cognac. It is possible that both of them went outside onto the balcony, where the accused smoked marijuana and the complainant smoked a regular cigarette.
[23] The parties came back inside and, all of a sudden, while the complainant was on the couch, the accused allegedly put a condom on, pulled up the complainant’s sweater dress and forced sexual intercourse on her. The complainant asked the accused to stop on a number of occasions, and told the accused that she had a boyfriend.
[24] After this alleged assault, the complainant blocked the accused on-line. He attempted to contact her through Badoo but she did not respond initially. The accused then contacted the complainant towards the end of November, and they had an exchange of messages. After this exchange of messages, the parties agreed to go out for drinks again. The second encounter between the accused and the complainant took place on the evening of November 29th-30th, 2015.
[25] At the preliminary inquiry, the complainant testified that part of the reason that she went out with the accused again was because she wanted to ask the accused why he assaulted her. The complainant also acknowledged that she never actually asked the accused this question.
[26] In any event, the parties agreed to meet at a bar in the area where the complainant lived. The complainant had several drinks during the course of the evening. At one point, the complainant told the accused that she was done and wanted to go home.
[27] The complainant and the accused got into the accused’s car and started driving. The accused told the complainant that he was going to a hotel because he could not drive home. He went to a hotel with the complainant, who remained in the car while the accused checked in.
[28] The complainant’s next memory is of the accused being on top of her, and having vaginal intercourse with her. She also remembers being in different sexual positions, and that the accused was wearing a condom. The complainant remembers the accused holding her down very tightly and, at one point, digitally penetrating her anus. The complainant recalls very little of the events between the time that the parties arrived at the hotel and this moment in the alleged assault.
[29] After the accused got off her, the complainant got dressed and left the hotel room. She went outside and tried to call a cab. The accused came out of the hotel room and offered to drive her home. However, she ran away, saw a police cruiser and reported the assaults to the police.
[30] The accused did not testify at the preliminary inquiry. However, it appears from some of the questions asked of the complainant by the accused’s counsel that the accused may allege that the sexual conduct was consensual.
The Law
[31] In considering whether to admit an expert report, there are three key cases that must be reviewed. They are R. v. Abbey ((2009) 2009 ONCA 624, 97 O.R. (3d) 330), White Burgess Langille Inman v. Abbott and Haliburton Co. (2015 SCC 23, [2015] 2 S.C.R. 182) and R. v. Mohan (1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9).
[32] Mohan sets out four criteria that a Court should consider in deciding whether to admit an expert report, as follows:
a) Relevance
b) Necessity in assisting the trier of fact.
c) The absence of any exclusionary rule, separate and apart from the opinion rule itself.
d) A properly qualified expert.
[33] For the purposes of this case, neither party provided much argument on point (c). I do not see any exclusionary rule, other than the opinion rule, that would apply to exclude this evidence, and will not consider that point further.
[34] Abbey and White Burgess have refined the rules set out in Mohan. In particular, they divide the admissibility inquiry into two distinct steps. In the first step, the Court considers the Mohan criteria, which are the threshold requirements for admissibility. Then, at the second step, the judge is required to balance the potential risks and benefits of admitting the evidence.
[35] At the second, step, the role of the trial judge is explained by Doherty J.A. in Abbey, when he stated (at paragraph 76):
Combined, these two concerns [giving expert evidence more weight than it deserves and accepting expert evidence without subjecting it to the scrutiny it requires] raises the specter of trial by expert as opposed to trial by jury. That is something that must be avoided at all costs. The problem is not a new one but in today’s day and age, with proliferation of expert evidence, it poses a constant threat. Vigilance is required to ensure that expert witnesses like Detective Inspector Lines are not allowed to hijack the trial and usurp the function of the jury. [Emphasis added.]
[36] In deciding whether expert evidence should be admitted, the burden of proof lies on the party seeking to tender the expert evidence on a balance of probabilities.
[37] I will now turn to a consideration of how this test applies to the proposed evidence in this case.
Applying the Law
[38] The law requires me to consider each of the Mohan criteria, and then to assess the evidence as a whole to determine whether it is admissible. I will review the three Mohan criteria that are in issue in this case, and then address the assessment of the evidence as a whole.
a) Relevance
[39] To be admissible, expert evidence must be both logically relevant and legally relevant. As noted in Abbey, supra, at the first stage of the inquiry, the Court is only concerned about logical relevance. Legal relevance, or probative value, is addressed at the second stage.
[40] It is clear that Dr. D’Anniballe’s evidence would be used in order to explain the conduct of victims generally both during, and after, the alleged sexual assaults. This evidence is logically relevant, in that it may relate to issues of the complainant’s credibility in this case and provide an explanation as to why she did (or did not do) certain things during and after the assault. Most of the accused’s concern about relevance relate to the probative value of the evidence, which I will return to below.
b) Necessity
[41] The Crown argues that this evidence is necessary because the behaviors of sexual assault survivors are likely to be outside the knowledge and experience of a typical juror. Counsel for the accused argues that the purpose behind Dr. D’Anniballe’s evidence is to provide the jury with a “ready-made” inference to explain the complainant’s conduct. Counsel also points out that the inferences suggested in Dr. D’Anniballe’s report are only one set of inferences that could be drawn about the accused’s conduct, and that there are other inferences that can be drawn.
[42] In support of its argument, the Crown points to the conclusions of the Inquiry Committee of the Canadian Judicial Council into the conduct of former Federal Court Justice Robin Camp (“the Camp Inquiry Report”). Counsel argues that this report supports the conclusion that expert evidence is necessary to assist the judicial reasoning process in the areas of neurobiology of trauma and victim behavior.
[43] I do not see the Camp Inquiry Report going as far as suggested by Crown Counsel. Instead, I viewed the report as setting out three observations. First, the Report observed (at paragraph 165):
[165] The Committee does not want to be taken to be saying that Justice Camp should be faulted for having gaps in his knowledge about the ways in which victims should respond to sexual violence, or that asking questions which revealed those gaps amounted to judicial misconduct. The impropriety of his questions to the complainant stemmed not from understandable gaps in his knowledge. Judges cannot reasonably be expected to have expertise in every discipline (including neurobiology), which is precisely why expert witnesses are often called to assist the judicial reasoning process.
[44] Second, the Committee accepted testimony from Dr. Lori Haskell, an expert in women’s experience of male violence and the neurobiology of fear and trauma. This evidence was accepted in part because Dr. Haskell had a number of counselling sessions with former Justice Camp. Dr. Haskell is a clinical psychologist, an assistant professor in the Department of Psychiatry at the University of Toronto and a research associate at the University of Western Ontario. She has done significant primary research in this area.
[45] Finally, the Camp Inquiry Report pointed out that there have been significant problems in both the law and in broader society with myths and stereotypes associated with sexual assault. The Camp Inquiry Report quotes extensively from the judgment of Madam Justice L’Heureux-Dube in R. v. Seaboyer (1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577), as does the Crown in this case.
[46] The passages that were quoted by the Crown illustrate that there were problems with society accepting myths and stereotypes about sexual assault survivors. The fact that the Camp Inquiry was necessary illustrates that many of those myths and stereotypes are still present both in society and in the legal system.
[47] The Camp Inquiry flowed from then Justice Camp’s comments in the Wagar case, where then Justice Camp acquitted Mr. Wagar of sexual assault. The Alberta Court of Appeal allowed an appeal from that decision, stating (at paragraph 4):
Having read the Crown’s factum, portions of the trial transcript and having heard Crown counsel’s arguments, we are satisfied that the trial judge’s comments throughout the proceedings and in his reasons gave rise to doubts about the trial judge’s understanding of the law governing sexual assaults and in particular, the meaning of consent and restrictions on evidence of the complainant’s sexual activity imposed by section 276 of the Criminal Code. We are also persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgment. There were also instances where the trial judge misapprehended the evidence.
[48] This passage illustrates that many of the myths and stereotypes exhibited in the trial decision in Wagar have been discredited, and, as a matter of law, should no longer be accepted by the Courts.
[49] This brings me to the two problems with Dr. D’Anniballe’s proposed evidence in terms of its necessity. First, some of this evidence will touch on legal principles that, as a matter of law, are within my exclusive jurisdiction as the trial judge. Second, some of this evidence has the potential to affect credibility.
[50] First, there is the evidence that might relate to matters of law. Specifically, there are certain inferences that, as a matter of common law, are not open to a trier of fact. For example, the fact that a complainant delays reporting a sexual assault to the police or fails to report it to friends or family cannot, standing on its own, support an inference that the complainant is less believable. In addition, see R v. A.G. (2000 SCC 17, [2000] 1 S.C.R. 439) where the Supreme Court set out the myth that complainants in sexual assault cases have a higher tendency to fabricate allegations based on “ulterior motives”. These issues can be addressed through the jury charge, and expert evidence is not necessary.
[51] The problem with leaving some of these issues as factual questions that are the subject of evidence is clear. If an expert testifies about the legal principles that I have set out above, then that expert is subject to cross-examination on those principles, and the defence can dispute those principles through cross-examination.
[52] Those principles will be in the jury charge, as counsel for the accused has rightly conceded. However, the fact that there was cross-examination over those principles could leave a jury with the impression that there was room to debate those principles, even though there is, as a matter of law, no room to do so. In other words, in some small part, there could be harm in having the jury consider these as issues of fact where they can give them more or less weight rather than issues of law where they are bound to follow my instructions.
[53] The better approach is a jury instruction instead of expert evidence where the points are a matter of law. This is made clear by the Supreme Court’s ruling in R. v. D.D. (2000 SCC 43, [2000] 2 S.C.R. 275 at paragraphs 64-67). The majority of the Court in that case held that judges should instruct juries that there is no inviolable rule how people who are the victims of a sexual assault will behave. The Court went on to find that a jury instruction was preferable to expert opinion because (at paragraph 67) “it is given by an impartial judicial officer, and any risk of superfluous or prejudicial content is eliminated.”
[54] This brings me to the evidence relating to credibility. Assessing credibility is the responsibility of the trier of fact. As McLachlin J. (as she then was) noted in R. v. Marquard (1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223 at paragraph 49):
A judge or jury who simply accepts an expert’s opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and intuitive sense of the matter: see R v. B. (G.) (1988), 1988 CanLII 208 (SK CA), 65 Sask. R 134 (C.A), at p. 149, per Wakeling J.A., affirmed 1990 CanLII 113 (SCC), [1990] 2 S.C.R. 3. Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert’s opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert’s opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses.
[55] The evidence of Dr. D’Anniballe in this case is designed to explain the complainant’s conduct to the jury. This evidence, to the extent it goes beyond the standard jury instructions, could be relied upon by the jury in assessing the complainant’s credibility. I acknowledge that, in Marquard, the expert actually provided testimony on whether the complainant in that case was believable. The Crown does not seek to adduce such evidence in this case.
[56] However, credibility is the provenance of the trier of fact, and there are risks associated with having experts testify as to issues relating to credibility. As a result, I must take the concerns expressed by McLachlin J. into consideration in assessing whether this evidence should be admitted.
[57] Ultimately, in assessing necessity, Sopinka J.’s observation in Mohan (at paragraph 22) that necessity should not be judged by too strict a standard must be remembered.
[58] Although I have concerns with the necessity of the evidence, my concerns relate to the larger balancing over whether the evidence is sufficiently probative in this case to overcome the prejudicial effects that would flow from its admission. Although set out above, these concerns are more properly addressed in the balancing analysis where they can be weighed against the other factors at play.
c) Qualified Expert
[59] In assessing the qualified expert requirement at the first stage, the comments of Cromwell J. in White Burgess (at paragraph 49) are important:
I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.
[60] In this case, Dr. D’Anniballe testified that she understood the expectations of this Court in terms of providing unbiased testimony and that she was aware of her duty to present the evidence in an objective way. She also confirmed that she could be non-partisan in the presentation of her evidence.
[61] Although the accused has raised some legitimate concerns about Dr. D’Anniballe’s neutrality, those concerns do not come close to the level required by White Burgess to exclude her testimony under the threshold inquiry. I will return to this issue in the balancing portion of the test below.
d) The Balancing
[62] Counsel for the Crown argues that this evidence is so probative, and the risks associated with hearing it are so small, that it is beyond question that the evidence should be received. I do not see the balancing as being nearly so clear-cut.
[63] In conducting my balancing, I start with two overarching observations. First, this is a criminal trial, and the accused’s liberty is at stake. I must be mindful of this fact, along with the fact that the Crown and the public are also entitled to a fair hearing, in conducting my balancing. Second, it is clear from my review of the transcript from the preliminary inquiry that credibility is going to be a significant issue in this case. As I have noted, portions of the expert’s evidence may go to credibility, and this may have an adverse effect on the accused’s case.
[64] Any prejudicial effect does not necessarily prohibit the Crown from calling the evidence. Indeed, as the Crown observes, there will be expert reports that are prejudicial to the accused simply because the report marshalls additional evidence against the accused.
[65] However, a close examination of Dr. D’Anniballe’s evidence reveals some concerns. As I have noted at paragraph 18 above, Dr. D’Anniballe intends to testify about a series of behaviors that victims of sexual assault generally engage in after the assault. She was cross-examined in detail about these behaviors and, for each one, confirmed that some victims of a sexual assault would not behave in this way, and that some malingerers would behave in the same way as a typical victim of a sexual assault.
[66] This brings me to the quality of the evidence that Dr. D’Anniballe can provide to the trier of fact. In the course of her cross-examination, Dr. D’Anniballe was asked whether some victims would not exhibit the behaviors that she had outlined. In response, she used words like “less often”, “possible” and “rare” to describe whether or not victims would not exhibit the behaviors that Dr. D’Anniballe says are typical of sexual assault survivors.
[67] I start with the observation that expert evidence in the abstract is not helpful unless it has some connection to the case at hand (see R. v. Bernshaw 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at paragraph 84). In this particular case, there is some connection between the expertise and this case, as there are clearly still rape myths at play in our culture, and those could improperly influence the jury’s deliberations. However, as I have noted above, jury instructions will assist in addressing those issues.
[68] Then there is the fact that, none of the studies that Dr. D’Anniballe has read were either filed as evidence or explained in any detail. Similarly, Dr. D’Anniballe testified about the clinical experiences that she has had, but could not quantify how many of the people she has seen have exhibited what she would testify are the common responses of sexual assault survivors, and how many have exhibited the less common responses.
[69] In cross-examination, Dr. D’Anniballe was also provided with a journal article and an abstract of a second article dealing with traumatic memory. In cross-examination, it was put to Dr. D’Anniballe that, in some circumstances, the amygdala could have a positive effect on the coding and recall of emotional memory. Dr. D’Anniballe agreed that, if the details were central to the person’s attention at the time of the stressful incident, they might be enhanced.
[70] The differences in how survivors behave, the absence of any detailed evidence about peer-reviewed sociological or scientific studies, and the nuances around how memories are processed leave me with concerns about the utility of Dr. D’Anniballe’s evidence in this case.
[71] This brings me to Dr. D’Anniballe’s qualifications. I have two concerns about her qualifications. First, she has not performed any primary research in this area. The advantages of an expert who has performed such research might include, for example, an ability to quantify the relative likelihood of survivors behaving in a particular way. This more detailed evidence would be of more assistance to a jury.
[72] Second, Dr. D’Anniballe is an advocate in this field. That, on its own, is not grounds to disqualify her from providing an opinion. As I pointed out to the accused’s counsel in argument, police officers are often qualified as experts in cases where they do not play an investigative role in that particular case. The accused’s concerns are not, and cannot be, about the fact that Dr. D’Anniballe works in this area providing victim support.
[73] However, I have two additional concerns about Dr. D’Anniballe’s impartiality. First, when asked whether she would accept work from anyone, or whether she had to believe in the value of the organization or the client to accept the work, Dr. D’Anniballe testified that she would probably lean towards accepting work based on the values of the organization or the client. This suggests that she has a partiality to the survivors of sexual assault that might appear in her testimony.
[74] Second, Dr. D’Anniballe has spoken in the media on a number of occasions about sexual assault, and those articles were put to Dr. D’Anniballe on cross-examination. While it is difficult to draw any strong conclusions from Dr. D’Anniballe’s statements, it is clear that she is an advocate for rights and protections for victims.
[75] When taken on their own, neither of these concerns are sufficient to disqualify Dr. D’Anniballe as an expert. However, they are factors that must be considered in assessing the admissibility of this evidence under the second branch of the test. This is particularly true of the first factor.
[76] There are two additional points I should address. First, Crown counsel pointed out that the Courts have regularly admitted evidence from experts about the behavior of victims of domestic violence. In particular, counsel points to R. v. Lavallee (1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852) where Wilson J. stated (at paragraph 31):
Expert evidence on the psychological effect of battering on wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called “battered wife syndrome”. We need help to understand it and help is available from trained professionals.
[77] Crown counsel says that many of the questions raised in this passage about survivors of domestic assault apply here. I accept that proposition, which is why I have accepted that the proposed evidence from Dr. D’Anniballe is both logically and legally relevant.
[78] However, as I read Lavallee, there was a strong body of sociological research to support the expert testimony. While such literature most likely exists in this case as well, very little of it was referenced in Dr. D’Anniballe’s report, and none of it was put before the Court either directly or through testimony from Dr. D’Anniballe.
[79] Second, one of the principles in Mohan, supra, is that the closer the expert’s evidence is to the ultimate issue to be decided, the stricter the test should be for determining whether it should be admitted (see paragraph 28). I see nothing in either Abbey, supra, or White Burgess, supra, that would cause me to depart from this principle. In this case, the Crown seeks to lead expert evidence that could have the effect of bolstering the complainant’s credibility. While leading such evidence can be permitted, credibility is close to the ultimate issue to be decided in this case. As a result, the test for its admissibility should be applied more strictly.
[80] In summary, the risks associated with this evidence are as follows:
a) There are difficulties in quantifying the proportion of survivors that will behave in the manner described by Dr. D’Anniballie. As a result, it will be difficult for the trier of fact to objectively consider the probative value of the evidence.
b) At least a portion of Dr. D’Anniballe’s evidence in this case would go to credibility, which is a matter for the trier of fact.
c) Some of Dr. D’Anniballe’s proposed evidence could cause confusion with the jury as it relates to questions of law.
d) There are some concerns with Dr. D’Anniballe’s qualifications.
[81] These risks have to be balanced against the probative value of the evidence. As the Crown rightly points out, rape myths and stereotypes are an ongoing problem both in the legal system and in society as a whole. Providing the jury with evidence to debunk those myths and stereotypes would undoubtedly be of assistance to them, and would also ensure a fairer trial.
[82] However, in this case, I am of the view that the prejudicial effect of this evidence would outweigh the probative value. I reach that conclusion because the likelihood of survivors behaving in a particular way was not quantified, the studies that the expert relied on were not referenced or explained in detail in either her report or her viva voce evidence, and the evidence relates in part to credibility, a central issue in the case. There are also problems with the qualifications of the expert.
[83] In this case, the Crown seeks to rely on a description of unquantified typical behaviors, and would ask the jury to draw inferences from those typical behaviors. There is a real risk that the jury will, in the words of R. v. Abbey, attorn to the opinion of the expert. As I have noted above, credibility is also potentially a consideration if the jury receives this evidence.
[84] Given all of the foregoing, I am not persuaded that Dr. D’Anniballe’s evidence should be admitted. In the result, the Crown’s motion to call Dr. D’Anniballe as an expert in this case is denied.
LEMAY J
Released: October 24, 2017
CITATION: R v. Ennis-Taylor, 2017 ONSC 5797
COURT FILE NO.: CRIMJ(P) 1920/16
DATE: 2017 10 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
- and -
JAMALA ENNIS-TAYLOR
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: October 24, 2017