COURT FILE NO.: 15-M7871
DATE: 20180614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JOHN MCRAE
Applicant
Marie Dufort/John Ramsay, for the Respondent
Joseph Addelman/Mash Frouhar, for the Applicant
HEARD: May 24, 25, 2018
RULING ON ADMISSIBILITY AND SCOPE DEFENCE EXPERT OPINION EVIDENCE
BEAUDOIN J.
[1] John McRae is charged with 2nd degree murder of his son, Michael McRae, with an incident date of July 7, 2015. John and Michael had an argument at some time in the afternoon on that date. Later, at around 6:30 p.m., Michael was observed sleeping on the couch in the living room. In his statement to the police, which I ruled admissible, John McRae admitted stabbing his son while he was asleep. John McRae’s state of mind at that time is the essential issue for this trial.
[2] The Defence now seeks to introduce the opinion of Dr. Helen Ward, a forensic psychiatrist. Her report dated April 3, 2018 has been filed as exhibit B on this Voir Dire.
[3] While her report commences by stating that she has been retained to conduct a forensic psychiatric assessment of Mr. McRae, the purpose of her assessment is not apparent on its face. In her evidence, Dr. Ward clarified that she had been retained to give two opinions; the first on the issue of self-defence, and the second, on the issue of intoxication. That answer is of some assistance in understanding her report. She further testified as to her expertise on addictions issues. Her evidence was very brief.
[4] Dr. Ward testified that she really did not provide an opinion in her report and candidly admitted that necessity of her opinion on the question of self-defence was an open-issue in this case. She clarified that she set out potential conclusions that could be reached based on the evidence that might be presented at trial.
[5] The salient part of her report commences at page 18:
Mental Status Examination
John McRae was a normal weight 71-year-old male, appearing his chronological age. He was unshaven and alert. He has dentures but was not wearing them during the second interview. He was polite. Mood and affect did not appear depressed. There is no evidence of psychosis. In terms of cognition, there were no gross deficits, but his memory of the offence appeared to have deteriorated. There did not appear to be an attempt to make a positive impression on the interviewer. There was no suicidal or aggressive ideation. Insight and judgment were fair.
DSM-5 Diagnosis
Alcohol Use Disorder, in remission in a controlled environment.
Opinion
There are two main theories to consider with respect to John McRae’s state of mind when he killed his son Michael McRae on June 7, 2015:
• First, that he acted out of anger taking revenge on Michael McRae for physically getting the better of him earlier that day, and/or other perceived injuries.
• Second, that he acted out of fear believing that killing Michael McRae was the only way to save his own life.
Elements of this case which may support the second theory are as follows:
• There was a cycle in the relationship between John and Michael McRae which is quite complex.
• Michael McRae had been an active alcoholic and drug addict for decades, and his life had deteriorated, particularly over the year prior to the offence when he lost both his job and his relationship with the mother of his child. While John McRae’s alcoholic and addictive behaviour preceded his son’s, it appears that Michael McRae had the more severe addiction of the two, at least over the last two decades. John McRae had literally enabled Michael McRae’s addiction, allowing him to live with him in Calgary, when both were in active addiction, and again in Ottawa, when John McRae made serious attempts to recover from his addiction, with considerable although not complete success. As Michael’s addiction continued, John found himself in the position of having to live with him once again, in response to both pressure from other family members, and his own concern for Michael. When no one else could handle Michael, and when he was unable to manage on his own, John was the one the family turned to. He was in the classic position of a family member of an alcoholic – not wanting to abandon Michael in his alcoholism, but being unable to get him to quit drinking, despite repeated, increasingly desperate attempts to do so (signing him up for detox without his knowledge and pretending to have a terminal illness in the hopes of getting him to quit.)
• It appears that John had strongly considering moving again to get away from Michael but gave up the idea when Michael expressed that he would come with him. John had taken Michael in on several occasions before, and likely knew that even if he did move out, if Michael needed him, he would allow him to move in again and be in the same position as before.
• Both John and Michael had extensive criminal records and had spent stretches of time in correctional institutions. It appears that they adhered as much as they could to a “code”, common to inmates, that you speak to police as little as possible, don’t report crimes, don’t rat, and deal with conflicts yourself. The various police reports support this, in that both men gave minimal information to police. John appears only to have called when he couldn’t ‘handle’ Michael himself. For John, it would have been psychologically abhorrent to have Michael charged with an aggressive act towards him, in order to keep him away or bring him in line.
• Michael had become aggressive to the point where John could have legitimately been afraid of his own life.
• Over the past 5 years or so at least, Michael was reported to become quite aggressive when intoxicated. There is support for the contention that those involved with him actively avoided him out of fear for their safety when he was highly intoxicated. While John also avoided him (for example, going to a hotel), their interactions had become physically aggressive in the past 5 years, and once Heather and Madison had moved out, there was little incentive for Michael to check his own behaviour.
• There is conflicting evidence about how violent or aggressive Michael was when drunk. There is a fairly good support for the contention that John was his primary target of Michael’s aggression when he was drunk.
• At the same time, John was less physically capable than he had been, and started to take more preemptive measures (picking up a knife in 2013 and initiating the physical aggression in 2015 by kicking Michael and throwing him into the wall when Michael came storming into his room) to ensure that Michael would not be able to harm him physically.
• The description John gave to me, of Michael coming into his room and threatening him and then waiting until all was quiet and getting the knife and stabbing him while he slept, fits with the idea of a preemptive homicide as self-defence.
• John’s level of intoxication would have impaired his reasoning abilities at that time. There is strong support in the literature that blood alcohol concentration at the level John was calculated to have had, affects both the ability to “shift sets” (i.e. let go of an idea that you have in favour of another one) as well as the ability to inhibit an impulse. It would have been much more difficult for John to have evaluated the idea that it was “him or me” in his intoxicated stake than it would have been when sober.
[6] The Crown agrees that Dr. Ward can provide expert evidence on the effects of John’s level of intoxication on his reasoning abilities at that point in time. The jury has already heard the evidence from the toxicologist, Dr. Darryl Mayers that John McRae’s blood alcohol concentration would have been between 149 and 197 BAC at the time of the stabbing. Dr. Mayers declined to give an opinion on the effects of the blood alcohol concentration on John McRae’s cognition as this would fall within the realm of forensic psychiatry. It is conceded that Dr. Ward’s opinion on this issue meets all of the criteria for admissibility under the Mohan test. Dr. Ward however is clear that she offers no opinion of John McRae’s impairment at the critical point in time.
[7] The difficulty in this case arises from Dr. Ward’s conclusion in support of the second theory with respect to John McRae’s state of mind where she states:
The description John gave to me of Michael coming into his room and threatening him then waiting until all was quiet in getting the night stabbing him while he sat, fits with the idea of a preemptive homicide as self-defence.
[8] At the outset, there was some discussion with regard to the very last paragraph of Dr. Wards’ report beginning with the words “John’s level of intoxication” and whether it was offered in support of the issue of self-defence, the issue of intoxication or both. Mr. Addelman ultimately conceded that this last paragraph provided an opinion on the issue of intoxication only.
[9] There are other issues arising from the preceding paragraph beginning with the words “John’s description to me.” The first issue relates to the report of Michael coming into John’s room and threatening him shortly before being stabbed. This fact appears for the first time in John McRae’s first interview with Dr. Ward on April 29, 2016.
[10] At that time, John told her that he was in his room pretending to be asleep when Mike came in and told him “I’ll kill you, you old bastard” - he had said this before. Lying there, he waited until it was quiet. He went and grabbed the knife from the block on top of the fridge. Mike was laying on the couch on his back; eyes sort of shut. He told her that he stabbed Michael once in the stomach - Mike opened his eyes and said what are you doing - John said “I’m putting an end to the arguments” – stabbed him the second time – and said “I think I cut his throat; needed to stop the arguing” – “I just couldn’t take it no more – I had my fill of it.” She asked John when he got the idea of stabbing Mike, and he said that it was just “out of the blue”, and that he had “never had that thought before.”
[11] The second time she interviewed John McRae in October 2017, he reported he did not recall stabbing Michael and he did not recall him saying anything threatening – “I was really drunk.” He agreed that his memory had worsened compared to the year before. According to Dr. Ward, John’s inability to recall the threat did not help him as this is not the kind of thing someone easily forgets.
[12] She was asked in re-examination whether she would have still come to her conclusion about preemptive homicide as self-defence in the absence of the threatening words. She agreed that she would still come to that conclusion because John told her he was afraid of Michael. She acknowledged that this comment does not appear anywhere in her report. She also agreed that she did not refer to the fact that John did not make any comment about a death threat when first questioned by Detective Jacobs in the video-taped interview she had viewed.
[13] The second issue arises with her use of the words “preemptive homicide” and whether she is using that term to describe John McRae’s subjective state of mind or whether she is offering it as an opinion in support of a R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 - “battered spouse syndrome” type of defence. In answer to my question, she indicated that her opinion was being offered to support a defence that was analogous to that syndrome and that defence counsel had provided her with a copy of the Lavallee decision.
[14] Mr. Addelman argues that he is not presenting a “Lavallee” defence although he maintained that Dr. Ward should still be able to provide an opinion and to use that phrase in giving her opinion.
[15] The Defence position is that Dr. Ward’s opinion on this issue meets the four Mohan factors, and that the cost benefit analysis favors the admission of Dr. Ward’s report on this issue.
[16] The Crown submits that Dr. Ward’s report does not meet the necessity criteria in the first stage and that, in any event, Dr. Ward’s report fails to meet the criteria in the cost-benefit analysis.
The Law
[17] Expert or opinion evidence is presumptively inadmissible: its admissibility must be established on a balance of probabilities. The admissibility of an expert report or expert evidence is governed by the principles set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. These are:
- the relevance of the proposed opinion;
- necessity to assist the trier of fact;
- absence of an exclusionary rule, and
- proper qualification of the expert
[18] Once those factors are met, there is a second step consideration which involves the role of the Court as gatekeeper and requires the exercise of judicial discretion in considering the legal relevance of the opinion and weighing the cost benefit associated with this admission. The Court is required to take into account the evidence’s probative value, reliability, significance of the issues, and necessity in weighing those factors against the consumption of time, and the potential for prejudice, including the likelihood that the evidence will confuse the trier of fact.
Analysis
[19] If the report is being offered solely to support John McRae’s subjective state of mind, I agree that the report does not meet the necessity criteria. If the opinion is being offered in support of a novel application of a Lavallee type of defence, I find that Dr. Ward has not been properly qualified to give opinion evidence on that issue.
[20] John McRae’s state of mind is a relevant issue regarding his intent at the time he stabbed his son and whether he acted in self-defence.
[21] In this regard, I find the decision in R. v. Henderson, 2016 ONSC 2885 of considerable assistance. In that case, the defence sought to call a forensic psychiatrist, to provide opinion evidence to the jury on two discreet issues: (a) whether past trauma the accused experienced as a teenager explained why he carried a knife with him; and (b) whether that trauma explained why he reacted so violently to the events that culminated in the killing. The defence had submitted that this evidence was necessary to assist the jury in understanding how historical events could have significantly impacted behaviour of the accused on the night of the incident. As in this case, self-defence and intent were the critical issues.
[22] Justice Bird discussed the meaning of necessity of the expert evidence as being something that is likely to be outside the experience and knowledge the trier of fact. It is required if ordinary people would be unlikely to form a correct judgment about the subject matter of the opinion unless assisted by someone with special knowledge. Justice Bird noted as follows:
36 In this case, two of the critical issues for the jury to determine, assuming they find that Mr. Henderson inflicted the injuries, will be his intent in doing so and whether he acted in self-defence. These will be factual issues for the jury to decide, taking into account all of the evidence. It is something that falls squarely within their duties.
37 The Court cautioned against allowing expert witnesses to usurp the function of the jury in R. v. Parrott, 2001 SCC 3, [2001] S.C.J. No. 4. Binnie J. stated that the role of an expert witness is not to testify to the facts but, rather, to provide an opinion based on those facts to assist the trier of fact to draw the appropriate inferences (at paragraph 55). If permitted to testify, Dr. Gojer would opine that Mr. Henderson’s mental state at the time of the stabbing was severely comprised. This is akin to saying that he could not form the requisite intent to commit murder. It is a statement of fact that goes directly to one of the core issues the jury will have to determine.
38 In R. v. Ranger, 2003 CanLII 32900 (ON CA), [2003] O.J. No. 3479 (C.A.), the Court distinguished between expert evidence that addresses what happened and that which purports to explain why something occurred. Opinion testimony about why something happened raises more concerns and has generally not been found to be inadmissible (at paragraphs 70 and 72). Dr. Gojer’s opinion in this case addresses why Mr. Henderson acted in the manner he did.
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.
41 The defence sought to call Dr. Gojer to give almost identical evidence in Liard. In that case, Mr. Lasota admitted that he had repeatedly stabbed the deceased, but did not concede that he intended to kill her or that the murder was planned and deliberate. He wanted to call Dr. Gojer to testify that as a result of several factors, including an intense fear stemming from a recent attack on him, he had a “disordered capacity to form intent”. Dr. Gojer was prepared to say that Mr. Lasota snapped due to a number of events. Like Mr. Henderson, Mr. Lasota did not suffer from any major mental disorder. Unlike in this case, extensive psychological testing was conducted on Mr. Lasota and Dr. Gojer authored a lengthy and detailed report.
42 In refusing to permit Dr. Gojer to testify, Corbett J. found that his evidence would amount to a description of events, rather than a psychiatric opinion. Dr. Gojer’s opinion was not within the realm of psychiatry, but rather dealt with matters of human nature and behaviour within the limits of normality (at paragraphs 362 and 365). Corbett J. relied on the decision of the Ontario Court of Appeal in R. v. Lovie, 1995 CanLII 801 (ON CA), [1995] O.J. No. 2065, for the proposition that testimony from an expert that does little except affirm the accused’s story amounts to simple oath-helping (at paragraph 366). Similarly, in R. v. Haynes, [1997] B.C.J. No. 2756 (C.A.), expert evidence that amounted to putting a “professional gloss” on the accused’s evidence was not admissible.
43 In Liard, Corbett J. made the following statement about Dr. Gojer’s proposed testimony, which is equally applicable in this case: “the expert evidence would go no further than to explain to the jury that the “over-reaction” could be a possible explanation for what happened, if the jury believed Mr. Lasota’s evidence”. As a result, Corbett J. concluded that Dr. Gojer’s evidence was not admissible because it was not necessary to assist the jury. The testimony would constitute oath-helping and dress up matters of common experience in the cloak of expertise (at paragraphs 370 and 377).
[23] In the end, Justice Bird did not permit that expert evidence to be put to the jury.
[24] In this case, Dr. Ward does not actually provide an opinion, she simply restates the anticipated testimony of the accused and of others, and she summarizes the evidence she considered in scientific language and her use of the term “pre-emptive homicide” is problematic. This is dangerously close to a legal conclusion that is beyond the scope of any opinion. Moreover, she has selected parts of the evidence that she has reviewed and has preferred the version of the accused, and in doing so, she usurps the core function of the trier of fact. She agreed that some of the evidence she lists is not the subject matter of expert psychiatric opinion; namely with respect to the code of silence that might have existed between John and Michael; the size difference between the two men.
[25] There is no diagnosis of John McRae beyond an alcohol abuse disorder. There is no analysis of all the facts. Dr. Ward does not even discuss the alternate theory that Mr. McRae acted out of revenge. Dr. Ward simply applies her own words to what John has told her. The jury is quite capable of assessing, as a matter of their own experience, the effects of the abuse John McRae may have suffered at the hands of his son in assessing his state of mind on the night in question and in applying all of the factors listed in section 34(2) of the Criminal Code.
[26] To the extent that the opinion is being offered to suggest that John McRae was suffering from a psychiatric condition that is analogous to a battered wife syndrome, there is no analysis to support that theory. Dr. Ward was not qualified in this area.
[27] There is no question that expert evidence is necessary to present a Lavallee type of defence. In Lavallee, the Supreme Court commented on the relevance of expert evidence in these types of cases. The Court noted that assessing the objective standard of reasonableness must be adapted to the particular circumstances of battered women. The Court summarized its discussion of the principles this way at para. 60:
In light of the foregoing discussion I would summarize as follows the principles upon which expert testimony is properly admitted in cases such as this:
Expert testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person.
It is difficult for the lay person to comprehend the battered wife syndrome. It is commonly thought that battered women are not really beaten as badly as they claim, otherwise they would have left the relationship. Alternatively, some believe that women enjoy being beaten, that they have a masochist strain in them. Each of these stereotypes may adversely affect consideration of a battered woman's claim to have acted in self-defence in killing her mate.
Expert evidence can assist the jury in dispelling these myths.
Expert testimony relating to the ability of an accused to perceive danger from her mate may go to the issue of whether she "reasonably apprehended" death or grievous bodily harm on a particular occasion.
Expert testimony pertaining to why an accused remained in the battering relationship may be relevant in assessing the nature and extent of the alleged abuse.
By providing an explanation as to why an accused did not flee when she perceived her life to be in danger, expert testimony may also assist the jury in assessing the reasonableness of her belief that killing her batterer was the only way to save her own life.
[28] The Supreme Court has indicated an unwillingness to extend the Lavallee analysis to other situations where the prior self –defence provisions were in force. In R. v. Charlebois 2000 SCC 53, [2000] 2 S.C.R. 674, the accused was charged with first-degree murder for the shooting of a man in the back of the head while he was sleeping. At trial, his defence was based on an overwhelming fear of the victim that he had developed over the course of their long and difficult relationship. The psychiatrist was called by the defence and testified that, in his opinion, the accused was suffering from acute anxiety at the time of the shooting. The trial judge had properly identified the elements of self-defence for the jury. He directed that the assessment of the elements involved considering first, the accused’s perception, and second, the view of the reasonable person in the accused’s situation. On appeal, the accused argued that the jury should have been informed that the ordinary person test had to be infused with the appellant’s individual characteristics, and sought to rely on the Lavallee decision. The Court said this at para. 16:
16 The appellant relies on Lavallee, supra, for support. In my view, that case has no application here. In Lavallee, the Court found that in applying the objective part of s. 34(2) in the context of battered woman syndrome, the reference to the “ordinary man” was inappropriate (at p. 874):
If it strains credulity to imagine what the “ordinary man” would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical “reasonable man.”
It was conceded by the appellant that the relationship between the appellant and the victim here is quite distinguishable from that present in Lavallee. To allow the appeal on this ground would be to legitimize an extension of Lavallee that is not justified on the facts or in policy. While we have relaxed the requirement of immanency of the threat in the self-defence analysis particular to battered women, on the basis of expert evidence outlining the unique conditions they face, there is no justification for extending its scope further on the evidence presented in this case.
[29] For these reasons, I will not allow Dr. Ward to provide evidence on the issue of self-defence. It is not necessary. Given the amendments to the self-defence provisions of the Criminal Code and the list of factors found in section 34(2), it is questionable that the standard of reasonableness needs to be modified as it was in Lavallee. To the extent Dr. Ward’s opinion is offered in support of a novel application of a Lavallee type defence, she is not qualified to give that opinion.
[30] Even if I were to find that Dr. Ward’s report and evidence met all of the criteria in first step in the Mohan/Abbey[^1] analysis, I would not admit her report because of its potential to confuse the jury as it has confused this Court on this Voir Dire.
Mr. Justice Robert N. Beaudoin
Released: June 14, 2018
COURT FILE NO.: 15-M7871
DATE: 20180614
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JOHN MCRAE
Defendant
RULING ON ADMISSIBILITY AND SCOPE DEFENCE EXPERT OPINION EVIDENCE
Beaudoin J.
Released: June 14, 2018
[^1]: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330