R. v. Corner, 2017 ONSC 6468 — Superior Court of Justice | minicounsel

CITATION: R. v. Corner, 2017 ONSC 6468

OSHAWA COURT FILE NO.: 15/13823

DATE: 20171108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

KEENAN CORNER

Applicant/Defendant

K. Saliwonchyk and L. Crawford, for the Crown

S. DiGiuseppe and K. Heath, for the Applicant/Defendant

HEARD: October 26, 2017

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.

SUPPLEMENTAL RULING RE: ADMISSIBILITY OF EXPERT EVIDENCE

MCKELVEY J.:

[1] This decision is supplemental to my decision of January 18, 2017 in connection with an application by the accused who is seeking to introduce an expert opinion from a psychiatrist, Dr. Julian Gojer.

[2] In the original application the accused sought to introduce the evidence of Dr. Gojer on the following issues:

(a) A fight or flight reaction

(b) The effects of marijuana

[3] In my decision of January 18, 2017 the application was dismissed on the basis that a proper evidentiary foundation to consider Dr. Gojer’s proposed evidence had not been established. At that time the court did not have a reliable summary of Dr. Gojer’s proposed evidence which counsel advised would be refined based on evidence to be adduced during the accused’s testimony.

[4] The accused in this case is charged in the death of Shabir Niazi who was shot to death on the afternoon of February 19, 2014.

[5] At the conclusion of argument on the current application which took place on October 26, 2017, I dismissed the defence application and advised counsel that reasons would follow. These are those reasons.

Background

[6] At this point the only evidence which the defence is seeking to introduce from Dr. Gojer is his evidence regarding a fight or flight reaction. The defence has abandoned its request to introduce evidence from Dr. Gojer regarding the effects of marijuana.

[7] The defence has not provided any further report from Dr. Gojer. Instead, the defence relied on the contents of his earlier report which comments generally on the scientific knowledge of the mechanics of a fight or flight reaction and how individuals may react in this scenario. Dr. Gojer has not met with the accused nor has he been given any information about what the accused says occurred. His proposed evidence is limited to giving evidence which describes generally the physical changes in a person’s body during a fight or flight situation and how this reaction can manifest itself in a person’s perception and reaction.

The Proposed Expert Evidence of Dr. Gojer

[8] With respect to the biological changes in the body associated with a fight or flight reaction, Dr. Gojer in his report states as follows:

When a person is confronted with a trigger that stimulates a fight or flight response in the body, the hypothalamus activates two bodily systems: the sympathetic nervous system and the adrenal-cortical system. This leads to the release of certain hormones from the endocrine system. In physiological terms, a major action of these hormones is to initiate a rapid, generalized response.

The activation of the sympathetic nervous system causes the body to speed up and tense up. The fight-or-flight response is characterized by an increased heart rate (tachycardia), anxiety, increased perspiration, tremor, and increased blood glucose concentrations (due to glycogenolysis, or breakdown of liver glycogen). These actions occur in concert with other neural or hormonal responses to stress, such as increases in corticotropin and cortisol secretion.

The activation of the adrenal-cortical system causes a variety of effects including streamlining brain function to focus only on big picture threats and not on small details or small tasks. During the reaction, the specific components of cognition seem to be largely negative in nature.

[9] With respect to how the fight or flight reaction can manifest itself in a person’s response, Dr. Gojer in his report states,

For example, this is characterized by: attention to negative stimuli; the attribution of hostility to ambiguous situations; the recurrence of recalling negative words; the experience of negative emotions; and the overestimation or underestimation of perceived control (which could lead to aggression). The attribution to hostility to ambiguous situations is seen as one of the most important cognitive factors associated with the fight or flight response because it can lead to aggression.

Further, activation of the adrenal-cortical system causes tachypsychia: the feeling that time has either increased or slowed down. It is common for an individual experiencing tachypsychia to have serious misinterpretations of their surroundings during the events, through a combination of their altered perception of time, as well as transient partial colour blindness and tunnel vision. Dilated pupils to allow more light to enter, and visual exclusion–tunnel vision–occurs, allowing greater focus but resulting in the loss of peripheral vision.

[10] In his voir dire held in January of 2017, Dr. Gojer testified in chief as follows (based on the notes of defence counsel):

JG: Yah that’s what happens. And if the situation is ambiguous, as a precaution the mind tends to evaluate the situation such as uh threatening, sometimes the estimation of time might be affected, either time seems to go faster very quickly, or seems to slow down. There’s an alteration in perception. Sometimes people see the big picture but ignore small facts. And there are times with extreme degrees of fear, a person might look down the barrel of the gun that’s put in their face and all that they see is the gun and that sometimes becomes the most important stimulus in the [inaudible]. And then when you ask them later on did you identify your assailant, the person might say ‘no all that I saw was the gun’. So the attention becomes very selective.

KH: So it sounds like it almost clouds your viewpoint a little bit?

JG: To a certain degree it’s a survival instinct so it’s sometimes the loss of awareness of other stimuli around might actually be detrimental. Keep in mind that the animals mind tends to function that way. Some of the theories behind that are including the freeze movement because carnivores respond better to movement as opposed to colour and if the animal has frozen its less likely to be detected. Each species has its own and many of these are applied to understand why human beings behave the same way too.

KH: Can you comment at all on emotional reaction a human might have in that context?

JG: When we’re saying emotions, the primary emotion that’s triggered off is the fear, it’s an emotion of fear. And then fear leads to self-preservation. When the fear is triggered, that triggered off fear is evaluated in the negative way and one has evaluated the situation no way out, the fear might actually turn to aggression and a person might react with hostility towards the triggering stimulus then react with anger or violence to terminate the stimulus that’s triggering the fear.

[11] In cross-examination on the voir dire, Dr. Gojer testified as follows (again based on notes of defence counsel):

MR. SALIWONCHYK: I am looking at the, again, the third paragraph on page two. You’re talking about [inaudible]. You talk about serious misinterpretations of their surroundings during events. For example, an individual who claims to have lost some time in the course of event – of an event could just be distracted, for example.

MR. GOJER: Could be, could be.

MR. SALIWONCHYK: Right.

MR. GOJER: Things happen very quickly, so the mind doesn’t piece everything together.

MR. SALIWONCHYK: So in terms of what you would be able to assist the jury with, would be that if, for example, if Mr. Corner reported that he experienced a change in perception of time, for example, you’d be able to tell the jury that that may have been part of a fight or flight response and that may have been one of the responses that happened, but that’s as far as you could go, as maybe….

MR. GOJER: That’s as far as I go. I wouldn’t say it is…

The Accused’s Evidence at Trial

[12] By way of additional background the accused testified at this trial that he was in a garage with Mr. Niazi when Mr. Niazi pulled a gun and pointed it towards him. Mr. Corner described how he was able to wrestle the gun away from Mr. Niazi. Mr. Niazi then picked up a baseball bat and started to swing it at the accused. At this point the accused started to fire the gun at Mr. Niazi.

Analysis

[13] The accused argues that the evidence of Dr. Gojer is needed to properly consider some of the questions and answers elicited by the Crown on the cross-examination of the accused and which may be pursued in the Crown’s closing. The defence is concerned that the Crown may be able to rely on evidence which is contrary to established science. For example the defence points to evidence from Mr. Corner that he does not recall all the details of the altercation including all of the remarks made by the deceased during the course of the altercation and his evidence that everything was like a blur. The defence argued that while a fight or flight reaction will have been experienced by most jurors, fighting to save one’s life is not an experience we can reasonably believe jurors have experienced.

[14] As noted in my earlier decision I start from the proposition set out in R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, where 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 behaviours relevant to credibility is admissible, provided that testimony goes beyond the ordinary experience of the trier of fact. The critical issue to address is therefore whether the response of the accused to the situation he described in his evidence is beyond the ordinary experience of a jury.

[15] I have concluded that the proposed evidence does not meet the requirement that it go beyond the ordinary experience of the jury. It therefore does not meet the necessity test as described in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, for the following reasons:

The explanation of the biochemical changes in a person’s body is not necessary for the jury to understand a person’s reaction to a threat or to understand the fight or flight reaction.
The fight or flight reaction as acknowledged by Dr. Gojer in his evidence on the voir dire is a basic animal instinct which almost everyone has experienced and is familiar with.
The scenario described by the accused in his evidence will be readily understandable to the jury. The jury does not need an expert opinion to explain how a person’s perception of time in a situation like the one described by the accused could be affected. They will also be well equipped to consider the kinds of emotional responses which might have emerged from the threats described by the accused in his evidence.
The relevance of Dr. Gojer’s evidence is further limited by the fact that he has not met with Mr. Corner and was not present in court to hear his evidence. As he acknowledged fairly in his evidence on the voir dire, that limits his ability to relate Mr. Corner’s evidence to a fight or flight reaction.
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 offence that occurred prior to the killing. In that case Justice Bird stated at para. 40,

Similarly, in this case, the jury will be able to use their collective common sense and life experience to evaluate the impact prior assaults may have had on Mr. Henderson’s state of mind on the night of the incident. There is nothing particularly technical or scientific about this evidence, and the weight to be given to it by the jury will ultimately depend on their assessment of Mr. Henderson’s credibility. This analysis lies at the very core of the jury’s function and is something that they are eminently well-qualified to do.

[16] Similarly in this case I find that the jury will be able to form its own conclusions about the Mr. Corner’s evidence about what happened in the garage without the help of a psychiatric opinion. Indeed, because Dr. Gojer has not obtained any information about the events which occurred from the accused, the jury would appear to be in a better situation than Dr. Gojer to understand and weigh the emotional reactions that could be generated by the situation described by the accused in his evidence. The jury is well equipped to understand and assess human behaviour.

[17] Even if I were to assume that the evidence of Dr. Gojer had some probative value I would still find that his evidence should be excluded as part of the larger cost benefit analysis which is contemplated under the criteria laid down by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. For the reasons set out above I do not attribute any significant benefit to the evidence of Dr. Gojer. I agree, however, with the comments of Justice Corbett in R. v. Liard, [2013] O.J. No. 4000, that this type of evidence carries substantial risks. In that case, the court stated,

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.

[18] The proposed evidence of Dr. Gojer carries with it in my view the very real risk of usurping the role of the jury and distracting it from its own analysis of the accused’s evidence.

[19] For these reasons, the accused’s application is dismissed.

Justice M. McKelvey

Released: November 8, 2017