CITATION: R v. B.W.W, 2017 ONSC 985
COURT FILE NO.: CRIMJ(P) 1401/16
DATE: 2017 02 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
A. Bernstein, for the Crown
- and -
B.W.W
D. Bains and P. Zbarsky, for the Accused
HEARD: February 7, 8, 2017
Reasons for Decision on Voir Dire: Admissibility of Defence Expert Opinion Evidence
FAIRBURN J.
(A) Overview
[1] B.W.W. is alleged to have sexually interfered with S.L. during a two year period ending July 22, 2007. S.L. would have been between 6 and 8 years of age at the time.
[2] The trial commenced on February 1, 2017. The Crown called two witnesses: T.S. and her daughter, S.L. After the Crown closed its case, B.W.W. testified and then called another two witnesses. He now seeks the admission of expert opinion evidence. He asks that Dr. Timothy Moore be permitted to offer an opinion in the following areas related to memory:
(i) misinformation effects,
(ii) factors that may compromise the reliability of autobiographical recollections,
(iii) distinguishing an authentic memory from one which may have arisen through imagination inflation,
(iv) the difficulty in distinguishing an illusory memory from one based on actual experience,
(v) source amnesia,
(vi) the notion that imagined events can be mistaken for actual events, and
(vii) the constructive and reconstructive nature of memory.
[3] For the reasons that follow, the application to admit this opinion evidence is excluded.
(B) General Facts on the Trial
[4] It is unnecessary to conduct a detailed review of the facts for purposes of this ruling. In brief compass, T.S. and her daughter met B.W.W. at a church they all attended in Brampton. On Sunday mornings, S.L. would attend Sunday school in the church basement. B.W.W. is said to have sexually touched S.L. in the vaginal area. S.L. has recounted that the touching took place in different parts of the church basement and on multiple occasions.
[5] S.L. testified that she initially told her mother about the touching while they were still living in Brampton. She testified that she was in the shower when she disclosed to her mother that B.W.W. had touched her.
[6] Regarding her daughter’s disclosure, T.S. testified that B.W.W. had been visiting their home in Brampton. After he left, S.L. said that he was “bad” and had put his fingers into her “small bum bum”. Both S.L. and T.S. testified that this was the term that they used at the time to identify S.L.’s vagina. S.L. testified that she was in the shower when she made her first disclosure to her mother. T.S. testified that they were in the kitchen. She also testified that she and her daughter discussed it more than once, including in other areas of the home.
(C) Dr. Moore’s Opinion
[7] Dr. Moore is a professor of psychology at York University’s Glendon College. He received his Ph. D. at State University of New York in 1971. His Ph. D. was in cognitive psychology. He has been the Chair of the department of psychology at Glendon College since 1995. He testified that “memory science” falls squarely in the domain of cognitive psychology.
[8] He has a lengthy curriculum vitae that reveals an expertise in the area of psychology, including a focus on various issues intersecting with the work of the court, such as confessions, eyewitness identification, interrogations, Mr. Big operations and more. His credentials are not in dispute.
[9] He authored a four-page report in this case, dated February 5, 2017. His report is derived from S.L. and T.S.’s statements to the police and their testimony, including their trial testimony.
[10] Dr. Moore maintains, “children are vulnerable to suggestion, manipulation, coercion, and social pressure”. Their memories may be distorted on account of “suggestive interactions” with adults. He maintains that there is “no foolproof means of distinguishing a ‘true’ report from one arising from suggestion questions” and what he refers to as “imagination inflation”.
[11] He says that “imagination inflation” is related to “source amnesia”. As I understand his evidence, these terms are used to describe the inability of a person, often children, to distinguish between an actually experienced event and one that arises from information provided by way of an external source. It is possible for people, often children, to confuse actually experienced events with ones that have been overheard or imagined. He says that when children are exposed to “misinformation or suggestive questioning”, they will sometimes fabricate or remember entire events as having been experienced when they were not.
[12] Dr. Moore suggests what might have happened between S.L. and her mother when the initial disclosure was made. While he notes that parents cannot be expected to record conversations with their children when they disclose sexual wrongdoing, he says that T.S. “may have, without realizing it, posed leading and suggestive questions to [S.L.]”. If this happened, it could have tainted S.L.’s memory. He says that by the time S.L. and T.S. were interviewed six years after the initial discussions, they could not be expected to recall the conversations surrounding the initial disclosure.
[13] Dr. Moore goes on to note a number of “aspects of [S.L.’s] accounts that raise concerns (in [his] mind) about possible threats to reliability”. He then catalogues these concerns, which I will return to later in these reasons.
[14] The report references what is described as a “recent” study about “false autobiographical memories”, meaning that researchers were able to implant false memories into people. The study reveals that repeatedly imagining a non-experienced event can cause imagination to fuse with reality.
[15] While his report suggests that he has no opinion on the truth or falsity of the complainant’s allegations, he feels that the “veracity of her account … should be evaluated in the context of our understanding about how memory can sometimes be a less-than-faithful depiction of the past”.
(D) Positions of Counsel
[16] The applicant argues that credibility is front and centre in this trial. He takes the position that there are two core concepts emerging from Dr. Moore’s report that will be of assistance to the court when making factual determinations: (1) where there is no recording of a conversation involving the initial disclosure of sexual wrongdoing, notorious reliability dangers lurk; and (2) certain aspects of S.L.’s testimony give rise to reliability concerns that may render her evidence fallible and unreliable. These are referred to as “red flags”.
[17] The applicant points to a few authorities where Dr. Moore’s expert opinion evidence has been accepted, including in the areas that B.W.W. seeks to have him qualified.
[18] Crown counsel argues that it is not necessary to receive Dr. Moore’s evidence. While Crown counsel does not rule out the possibility that such evidence may be helpful to a trier of fact from time-to-time, the need is to be assessed on a case-by-case basis.
[19] Secondly, Crown counsel places emphasis on the fact that the proposed expert seems to focus on the tainting that can unintentionally occur when it comes to child complainants. Crown counsel argues that Dr. Moore’s evidence can be distilled into a suggestion that in some cases, improvident questioning of children may tamper with their memories. The Crown says that there is no evidentiary basis to suggest that this occurred in this case and, as such, the proposed expert’s opinion is of no assistance to the court.
(E) Analysis
[20] In R. v. Abbey, 2009 ONCA 624, Doherty J.A. charted a two-step process for determining the admissibility of expert opinion evidence. The four criteria from R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 were absorbed under the first step: (i) relevance, (ii) necessity in assisting the trier of fact, (iii) absence of an exclusionary rule (other than the opinion rule), and (iv) a properly qualified expert. The party proffering the opinion must demonstrate on a balance of probabilities that these preconditions to admissibility exist before proceeding to the second step.
[21] Provided the applicant satisfies the court as to the existence of the four Mohan criteria, then the court will go on to consider whether the proposed opinion evidence is sufficiently beneficial to the trial process to warrant admission, despite the “potential harm to the trial process that may flow from the admission of the expert evidence”: Abbey, at para. 76. Step two is often referred to as the “gatekeeper” component of the expert evidence admissibility inquiry. The proposed evidence must meet all of these preconditions before being admitted for consideration by the trier of fact.
[22] Relevance as a prerequisite to admission under the first step of Abbey, refers to logical relevance. (Legal relevance is reserved for consideration under the second step, where the court performs its gatekeeper function: Abbey, at paras. 82-85.) I am prepared to assume that Dr. Moore’s evidence regarding the formation of memories, and what renders them susceptible to falsity, meets this criteria of logical relevance. I do not wish to be taken, though, as accepting the logical relevance of the evidence. In particular, I am concerned that there is no factual foundation in this case to support the suggestion that S.L.’s mother has actually influenced her memory. Any suggestion of influence is, in my view, somewhat speculative in nature.
[23] Among other reasons, I find that the admissibility of Dr. Moore’s evidence fails on the necessity requirement. In R. v. J.(J.L.), 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 56, Binnie J. explained that the very purpose of expert evidence is to “assist the trier of fact by providing special knowledge that the ordinary person would not know” and not to “substitute the expert for the trier of fact”. In R. v. Sekhon, 2014 SCC 15, at para. 45, Moldaver J. reinforced the court’s comments in Mohan, at p. 23: “if on the proven facts a judge or jury can form their own conclusions without help, then the opinion of [an] expert is unnecessary”.
[24] Each case operates on its own facts. The assessment of necessity operates within the context of the facts. I do not find the proposed evidence to be of any assistance with regard to my task as the trier of fact in this judge alone trial. I find that what Dr. Moore has maintained in his report, and testified to on the voir dire in this trial, is well within the experience of judges and, in fact, all triers of fact.
[25] There is nothing unique about the facts in this alleged sexual assault case. S.L. disclosed the alleged conduct to her mother and the authorities were not told about the alleged conduct until it was later mentioned at school. If Dr. Moore’s opinion evidence was required to make proper credibility and reliability assessments in this case, one might reasonably question when this type of opinion evidence would not be required.
[26] At its core, I understand Dr. Moore’s opinion to be that people can develop false memories. Children are not immune to this phenomenon, and, indeed, are likely more susceptible to falling victim to false memories. False memories can arise from, among other things, the communications that occur with others. Dr. Moore opines that T.S. may have, “without realizing it”, led S.L. to believe what she now believes. He says that there is simply no way of knowing. Such conjecture could apply in any case. This is not a basis upon which to admit expert evidence.
[27] Moreover, nothing about false, inaccurate, untruthful, misleading, unreliable and incredible memories is new. S.L. testified and was thoroughly cross-examined. As Rosenberg J.A. held in R. v. T.C. (2004), 2004 CanLII 33007 (ON CA), 190 O.A.C. 380, at para. 32, when approving of the decision to exclude this experts evidence in circumstances where there was an attempt to have him testify regarding a videotaped statement of a child witness, most of the testimony concerned matters that were “self-evident”. They were described as being the “stock and trade of what trial judges do day in and day out”. While Dr. Moore’s area of social science is interesting and undoubtedly important, the need to be informed of it in this case is entirely unnecessary.
[28] In addition, I am concerned with the fact that Dr. Moore’s evidence touches on an exclusionary rule. There is a difference between opinion evidence “about credibility” and opinion evidence “relevant to credibility”: Paciocco, D., Stuesser, L., The Law of Evidence in Canada, Seventh Edition, (Irwin Law Inc.: Toronto, 2015), at pp. 204-5. This concept was dealt with by Charron J.A., as she then was, in R. v. K.(A.) (1999), 1999 CanLII 3793 (ON CA), 125 O.A.C. 1. She cautions that the credibility of witnesses is a question that is exclusively reserved for the trier of fact: see para. 95. As noted in R. v. Marquard (1993), 1993 CanLII 37 (SCC), 85 C.C.C. (3d) 193, at p. 228, and cited by Charron J.A. as support in K.(A.), it is “a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion”.
[29] I should note that Mr. Bains, on behalf of B.W.W. recognizes this time-worn and important principle of law. With that said, the difference between an expert providing an opinion “about credibility” and “relevant to credibility” is a fine line and one that I am concerned is crossed in this case. In K.(A.), at para. 96, the majority discussed the necessary distinction between “evidence about credibility” which is clearly inadmissible, even when proffered in expert clothes, and “evidence about a feature of a witness’s behaviour or testimony that may be admissible even though it will likely have some bearing on the trier of fact’s ultimate determination of the question of credibility”. An example is provided to highlight the point. It may be proper to tender evidence to show that it is not unusual to delay reporting sexual abuse. However, evidence tendered to show that the complainant is “more or less likely to be telling the truth because she delayed reporting the abuse is not the proper subject-matter of expert testimony and is inadmissible”: see K.(A.), at para. 96.
[30] Among other things, Dr. Moore has commented in his report on some facts that may impact S.L.’s credibility. For instance, he says that he has “concerns” arising from “[S.L.’s] accounts” that disclose “threats” to the reliability of her evidence. He addresses a few of his concerns, including what is said to be an evolution of S.L.’s memory regarding whether she experienced pain during the assaults. In his report, he opines that if she had actually experienced the pain she has testified to, it “would” have been “memorable” and the “pain itself would be part of that memory”. Dr. Moore retracted this comment in cross-examination, acknowledging that he does not like to speak in absolutes. In his viva voce evidence, he preferred to say that the pain would only “likely” have been part of her memory if she had actually experienced pain. Regardless, he concludes that “it is difficult to reconcile” the fact that she originally suggested there was no pain, with her later position that there was significant pain.
[31] It is difficult to see these comments as anything other than directly remarking on S.L.’s credibility and reliability. I find that this evidence risks crossing, if not entirely crosses the line between testifying about matters relevant to credibility and testifying about credibility itself. While Dr. Moore disavows rendering an opinion on the truth or falsity of S.L.’s allegations, he comments on her evidence and, at a minimum, implicitly suggests his concerns regarding her credibility and reliability.
[32] While I accept that Dr. Moore’s evidence could be curtailed, in the sense that it would only be admissible for providing general principles regarding the frailties associated with memory, particularly of children, for the reasons already provided, I am not satisfied it is necessary.
[33] Bearing in mind my conclusions above, it is unnecessary to conduct a cost-benefit analysis under step two of Abbey. I simply noted that if I had to approach this step, I would have concluded that the applicant did not meet the threshold test for admissibility. As Doherty J.A. set out in Abbey, legal relevance refers to whether the evidence is “sufficiently probative to justify admission”: Abbey, at para. 83; Mohan, at pp. 20-21. Justice Doherty refers to this as the “probative potential” of the evidence: Abbey, at para. 87. The probative potential of the proposed evidence is minimal. It overlaps with common sense principles and invites speculation.
(F) Conclusion
[34] The application is dismissed.
Fairburn J.
CITATION: R v. B.W.W, 2017 ONSC 985
COURT FILE NO.: CRIMJ(P) 1401/16
DATE: 2017 02 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
B.W.W.
ACCUSED
Reasons for Decision on Voir Dire
Fairburn J.