Court File and Parties

Court File No.: CR 17-9072 Date: 2018/10/23 Superior Court of Justice - Ontario

Re: R. v. Mohamed

Before: G. E. Taylor

Counsel: Katie Krafchik, Counsel for the Crown Malcolm McRae, Counsel for the Accused

Heard: September 6, 2018

Ruling re Admissibility of Expert Evidence

[1] Abdu Mohamed is charged with dangerous driving causing bodily harm and assault with a weapon, being a motor vehicle. The charges arise out of an incident that occurred on July 22, 2016 between Abdu Mohamed, who was operating a motor vehicle and Kenny Lewis, who was riding a bicycle. Abdu Mohamed intends to assert a defence of automatism at the time of the altercation which resulted in the charges. To support the defence, he proposes to call a psychologist by the name of George Stones to testify as an expert witness.

[2] This is my ruling on the voir dire, which was held in advance of jury selection, to determine the admissibility of the proposed expert testimony.

[3] The admissibility of expert evidence is governed by the Supreme Court of Canada’s ruling in R. v. Mohan, [1994] 2 S.C.R. 9 which specifies that the admissibility of expert evidence depends on the application of the following four criteria:

a) relevance; b) necessity in assisting the trier of fact; c) the absence of any exclusionary rule; and, d) a properly qualified expert.

[4] The Supreme Court of Canada in R. v. Stone, [1999] 2 S.C.R. 290 has also stated that for the defence of automatism to be left to the jury, there must be psychiatric or psychological evidence to support the defence (paras. 187 and 192). Therefore, in order to present the intended defence of automatism, Abdu Mohamed requires expert psychiatric or psychological evidence in support.

[5] Mohan instructs that evidence is relevant if it is so related to a fact in issue that it tends to establish it (para. 18). In the recent case of R. v. Vassel, 2018 ONCA 721, the Ontario Court of Appeal described relevance at para. 82 as follows:

An item of evidence is relevant if it renders the fact it seeks to establish by its introduction slightly more or less probable than that same fact would be without that evidence. Relevance is a matter of everyday experience and common sense.

[6] It is my opinion that the proposed opinion evidence of Dr. Stones is relevant to the fact in issue in this case which is whether Abdu Mohamed was in a dissociative state at the time he is alleged to have committed the offences with which he is charged.

[7] With respect to necessity, the Supreme Court stated the following at paragraph 22 of Mohan:

This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury".

[8] At paragraph 92 of Stone, the Supreme Court of Canada stated:

To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion.

[9] Automatism or dissociative state is a condition which persons who are untrained in the field of psychiatry or psychology are unlikely to fully understand and appreciate. I therefore am of the view that the testimony of Dr. Stones will provide information to the jury which is likely to be outside the jurors’ experience and knowledge. The Supreme Court of Canada has made it clear that in cases involving claims of automatism, expert psychiatric or psychological evidence is necessary in order for the issue to be left to the jury for consideration.

[10] I am satisfied that Dr. Stones is a properly qualified psychologist with special knowledge and training with respect to automatism or dissociative state. Dr. Stones testified that he studied under Dr. Michael Bagby at the Centre for Addiction and Mental Health from 2004 to 2009. According to Dr. Stones, Dr. Bagby’s areas of expertise included deviant response style and malingering. Dr. Stones began conducting comprehensive psychological assessments in 2004 and has continued doing so to the present time. When conducting a psychological evaluation, Dr. Stones always assesses for the possibility of dissociative state. Dr. Stones incorporates testing for deviant response style in his assessments. Although dissociative and fugue states are very rare, he has dealt with two cases involving claims of dissociative fugue states. He testified that he has read what little literature there is on the subject.

[11] With respect to the proposed testimony from Dr. Stones regarding automatism or dissociative state, there is no exclusionary rule which would prohibit the jury from hearing his evidence.

[12] I therefore conclude that the Mohan criteria have been satisfied and Dr. Stones will be qualified as an expert in the field of psychology and psychological evaluations and in particular with respect to dissociative and fugue states, and he will be allowed to express his opinions on those topics. The testimony of Dr. Stones, however, must be closely restricted to the areas in which I have found him to be qualified as an expert. There are topics about which Dr. Stones will not be permitted to testify.

[13] At issue in R. v. Sekhon, [2014] 1 S.C.R. 272 was the admissibility of the opinion of an expert who was qualified in the field of the customs and practices pertaining to the sale and importation of cocaine. The expert, a police officer, was qualified on the basis of his involvement in over 1,000 drug investigations. During the course of his testimony, he expressed the opinion that he had never personally encountered a situation where a courier unknowingly brought a quantity of illicit drugs into Canada. Writing for the majority at paragraph 42, Moldaver J. stated:

The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence.

[14] In R. v. Abbey, 2009 ONCA 624, the Ontario Court of Appeal stated at paragraph 62:

The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal. [authorities omitted]

[15] In his report and his testimony on the voir dire, Dr. Stones stated that, while he cannot say if Abdu Mohamed is telling the truth, it is his opinion that the probability is low that he is lying. Dr. Stones comes to this conclusion as a result of administering several standard psychological tests. It is the function of the jury to decide if Abdu Mohamed is testifying truthfully when he says that he has no memory of the events which give rise to him being charged with the present offences. That is not the role of Dr. Stones. He will be allowed to testify about the tests which he administered to Abdu Mohamed and about the results of those tests but he will not be permitted to express his personal opinion about the truthfulness of Abdu Mohamed’s testimony before the jury. (See also R. v. Marquard, [1993] 4 S.C.R. 223 at paragraph 49.)

[16] Dr. Stones wrote in his report:

In Mr. Mohamed’s case, it is plausible that the punch to the face he claims to have received was the triggering event. It can reasonably be asserted that the average person would be apt to experience a physical confrontation on the street, culminating with being punched in the face, as a psychologically jarring event. But Mohamed’s past may have predisposed him to processing this event as a psychological shock of a greater magnitude than the average person.

[17] Dr. Stones’ testimony on the voir dire on this issue was consistent with his report. He stated that while working at the Centre for Addiction and Mental Health he had experience with patients from war-torn countries. He noted that they tended to underplay the seriousness of their past history having arrived in the country of “milk and honey”. He said that they tended to react out of all proportion to a triggering event when faced with trauma after immigrating to Canada. He said there is no peer-reviewed study regarding this phenomenon.

[18] It is my view that Dr. Stones’ opinion about Abdu Mohamed’s past is beyond his area of expertise. In coming to this conclusion I take into consideration that Abdu Mohamed apparently denies any significant trauma in his past.

[19] Dr. Stones expresses an opinion about how first-generation immigrants from developing countries view their environment after arriving in Canada. This is an opinion based on anecdotal evidence which he observed while working for the Centre for Addiction and Mental Health. Dr. Stones is not an expert in the field of immigration from developing countries. In my view, this is the type of anecdotal evidence which was held to be inadmissible in Sekhon. Dr. Stones will not be permitted to testify about this topic.

[20] Dr. Stones stated in his report that “it stands to reason” and testified that “it makes perfect sense” for the person who is said to have triggered the dissociative state to also be the victim of the aggression on the part of the person experiencing the dissociative state. He also said he was aware of differing opinions on this point. He said there are no scientific studies supporting either position. It seems to me that Dr. Stones is doing nothing more than, under the guise of expertise, expressing a personal opinion about something for which there is no scientific support. This is not the role of an expert. In my view, this is an issue for the jury to decide.

[21] Lastly, it is sought to introduce evidence of Dr. Stones’ opinion regarding the risk that Abdu Mohamed will commit future offences while in a dissociative state. Mr. McRae submits that this evidence is relevant to the “continuing danger factor” discussed by the Supreme Court of Canada in Stone at paragraphs 212 to 215. As I read the Stone decision, the continuing danger factor is to be considered by the trial judge in deciding whether to leave for consideration by the jury mental disorder automatism or non-mental disorder automatism. It is unclear to me whether that evidence would be presented in the absence of the jury. I do not propose to rule on this aspect of Dr. Stones proposed evidence at this time. As I have previously noted, this voir dire has taken place before the jury has been impaneled. It seems to me that it is preferable to defer this aspect of the ruling regarding the admissibility of Dr. Stones’ opinion evidence until at least some of the evidence has been presented at trial.

[22] I understand that Abdu Mohamed is likely to place his character in issue. It is submitted that Dr. Stones’ opinion about future risk is relevant to that issue was well. Although I am not ruling on the admissibility of the risk evidence, I note that this evidence is not in the usual form in which character evidence is presented namely, evidence of the accused’s general reputation within the community.

[23] For these reasons I find Dr. Stone to be properly qualified expert in the field of psychology and psychological assessments and he will be permitted to express opinions regarding dissociative and fugue states. It is important that Dr. Stones’ evidence be carefully limited and controlled. He will not be permitted to testify in certain areas as identified in this ruling. Counsel are directed to be diligent in assuring that the testimony of Dr. Stones is kept within his area of expertise.

“G.E. Taylor” G.E. Taylor, J. Date: October 23, 2018