INTRODUCTION

[1] The accused, Moka Dawkins, is a transgender person who identifies as a woman. She is charged with murder. In 2015, Ms. Dawkins was working as a prostitute. The deceased, Jamie Foster, was her sometime client. On August 3, 2015, Ms. Dawkins says she went to Mr. Foster’s apartment, in downtown Toronto, solely for the purpose of acquiring some marijuana. But Mr. Foster wanted to have sex with her and when, contrary to his wish, she attempted to leave, she contends that he suddenly attacked her with a knife. She acknowledges that she wrested the knife from Mr. Foster and, in turn, killed him, but claims that she acted in self-defence.

[2] Ms. Dawkins sought to introduce the evidence of a sociologist, Dr. Vivienne Namaste, concerning: (i) the greater prevalence of violence against transgender people, as compared to violence suffered by non-transgender members of the community; (ii) the still greater incidence of violence against transgender people engaged in prostitution; and (iii) the responses to violence typically to be expected from transgender people. The Crown opposed the application. On October 2, 2018, after hearing oral argument and reserving briefly, I dismissed the application, indicating that I would give reasons as soon as practicable; these are those reasons.

POSITION OF THE APPLICANT

[3] Inasmuch as Ms. Dawkins’ defence is self-defence, she asserts that the relevance of the evidence she proffers is twofold. First, the evidence concerning the prevalence of violence against transgender people, in particular those engaged in prostitution, renders more plausible (than would be the case without it) the proposition that the deceased initiated the violence that culminated in his death, thereby increasing the likelihood that the jury will accept Ms. Dawkins’ anticipated evidence that she acted in self-defence. Second, the evidence concerning the responses to be expected from transgender persons when confronted with violence will render her response to Mr. Foster’s attack more proportionate, and thus more reasonable, in the eyes of the jury than it might otherwise appear to persons unfamiliar with the reality of being a transgender person.

POSITION OF THE RESPONDENT

[4] It is the respondent’s position that the evidence is neither necessary nor relevant.

DISCUSSION

[5] For expert evidence to be admissible, the proffering party must demonstrate: (i) relevance; (ii) necessity; (iii) the absence of any exclusionary rule; and (iv) the proposed expert is properly qualified: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 17.

A. Issues Not Contested

[6] Two issues are agreed between the parties, namely, Dr. Namaste’s expertise and the absence of any exclusionary rule respecting the evidence it is proposed she give.

Expertise

[7] Dr. Namaste, is a professor of sociology at Concordia University. Having reviewed her curriculum vitae, except in one area, as I will discuss infra, I am otherwise satisfied that she is qualified to opine on issues concerning the transgender community.

Absence of an Exclusionary Rule

[8] As for exclusionary rules, the parties agree there is no rule that would render the proposed evidence inadmissible.

B. Contested Issues

[9] I turn now to the contested issues, namely, relevance and necessity.

I. Relevance: Who Initiated the Violence?

[10] As with any evidence, to qualify for admission expert testimony must be both logically and legally relevant: R. v. Abbey, 2009 ONCA 624, at para. 82.

Logical Relevance

[11] “Relevant evidence can be defined as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence (citations omitted)”: R. v. P. (R.), [1990] O.J. No. 3418, 58 C.C.C. (3d) 334 (H.C.J.). As noted above, the applicant contends that the evidence concerning the greater incidence of violence against transgender people, particularly those involved in prostitution, tends to render it more probable that the deceased initiated the violence that led to his death. This is, of course, a central building block in the applicant’s defence of self-defence. At first blush, the proposed evidence would seem to render more likely (than would be the case without it) the proposition that Mr. Foster initiated the physical altercation. Upon closer examination, however, I have decided that even that relatively “low threshold” is not met: Abbey, at para. 82.

[12] Relying on various studies to which she refers, as well as her own experience in dealing with transgender people, Dr. Namaste asserts, at para. 29 of her report, that transgender people experience a greater incidence of violence than non-transgender people precisely “because of being transgender.”

[13] In this case, however, the nature of the relationship between Mr. Foster and Ms. Dawkins was that of client and prostitute, respectively. They had had one prior liaison, approximately a month earlier, and, late on the evening of August 2, 2015, it was Mr. Foster who initiated their contact in the early morning of August 3. According to the accused’s account, the argument that quickly turned into a violent physical conflict arose, not because of anything to do with her gender per se, but, rather, because, contrary to Mr. Foster’s wish, she wanted to leave his apartment. Inasmuch as Mr. Foster had disrobed and attempted to seduce Ms. Dawkins, presumably his upset at her desire to leave was a function of his desire to have sex with her. Evidently, then, rather than having antipathy toward transgender people, it would seem Mr. Foster found the prospect of having sex with a transgender person appealing. Thus, as opposed to Mr. Foster having been violent toward Ms. Dawkins “because of her being transgender”, it appears that, on repeated occasions, he sought her out for a sexual purpose precisely because she was transgender.

[14] Furthermore, Mr. Foster had a criminal record that, pursuant to another application, I admitted as evidence: R. v. Scopelliti, (1981), 1981 CanLII 1787 (ON CA), 34 O.R. (2d) 524; 63 C.C.C. (2d) 481 (Ont. C.A.). That record contained a number of assault convictions. In three of them, the victim was female; in a fourth, an assault with a weapon, the male victim was a stranger to Mr. Foster and there is no suggestion that he was transsexual. At the risk of stating the obvious, Mr. Foster appears to have been a person who was quick to anger and, once angered, just as quick to resort to violence. Therefore, measured alongside his apparent proclivity for sex with transgender persons, the fact that he resorted to violence on this occasion does not suggest an animus toward transgender people, but, rather, a generally violent disposition and a tendency to deal violently with people who angered him. Against this backdrop, the assertion that transgender people suffer violence at a higher rate than non-transgender people is irrelevant to the jury’s consideration of self-defence.

Legal Relevance

[15] Strictly speaking, having found that the evidence proffered is not logically relevant in terms of proving who initiated the violence, it is unnecessary to go further. However, in the event that I am wrong in so holding, I will also examine the question of legal relevance.

[16] The determination of whether evidence is legally relevant “involves a limited weighing of the costs and benefits associated with admitting evidence that is undoubtedly logically relevant (citation omitted)”: Abbey, at para. 82. This cost/benefit analysis is case specific: Abbey, at para. 79. I appreciate, of course, where evidence is proffered by the defence, that the court should only exclude it where its probative value is significantly outweighed by its potential prejudice: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Blackman, 2008 SCC 37, [2008] S.C.J. No. 38.

Probative Value

[17] Assuming, arguendo, some logical relevance, I conclude for the reasons that follow that, in terms of supporting the proposition that Mr. Foster initiated the violence, Dr. Namaste’s evidence is of a very low order of probative value, such that the need for it in this case is tenuous, at best. That is so because there is other evidence directly related to this case that, in my view, strongly supports the proposition that Mr. Foster started the conflict.

[18] Ms. Dawkins sustained a cut below her left eye that required three stitches to close. She says that Mr. Foster stabbed her with a knife. The police seized a paring knife that had blood on it. Since the science is predicated on probabilities, the Crown’s DNA expert could not say with certainty that Ms. Dawkins was the source of that blood, but, in all the circumstances, the testing showed the probability to be so high that the inference that she was the source is, for all practical purposes, inescapable. Moreover, the knife’s blade was bent, consistent with it having been thrust with some force against something hard, such as the bone directly beneath the eye.

[19] Further, as mentioned above, I allowed an earlier application to adduce evidence of the deceased’s assault convictions, including an assault with a weapon. Respecting that conviction, the deceased became embroiled in a verbal dispute with a stranger on the street. When the conversation deteriorated, the deceased suddenly drew a knife and stabbed the man in his neck/shoulder area. The resulting wound required several stitches to close. Although, on the hearing of this application, the Crown did not concede that Mr. Foster started the conflict that led to his death, I do not understand the Crown to be seriously contesting that proposition.

[20] In summary, against this evidentiary backdrop, the added value (in terms of demonstrating that the deceased initiated the conflict) to be gotten from the general proposition that transgender persons suffer violence with greater frequency than non-transgender persons is trifling at best.

Potential Prejudice

[21] Turning to potential prejudice, had I ruled the evidence to be admissible, the trial would have been lengthened by at least a day, and perhaps longer, which, of course, falls on the cost side of the ledger. Other things being equal, I am of the view that the increased time involved in adducing this evidence would not, standing alone, be a reason to exclude it. However, given what I consider to be, at the highest, its marginal relevance and trifling probative value, along with other potential prejudice, to which I will next turn, the evidence did not seem to me to be worth lengthening the trial.

[22] Another potential cost associated with expert evidence is that it may confuse the jury. At para. 27 of her report, for example, Dr. Namaste states:

In my academic research, I make an analytic distinction between different kinds of violence faced by trans people. Violence can include several dimensions and be articulated and related forms. Violence against trans women include psychological elements: for example, verbal insults, bullying, or saying that trans women are not normal and not worthy. Violence can also include physical components: hitting a trans women [sic]; spitting on an individual; preventing someone from entering physical space. Violence also include [sic] social and institutional dimensions: an example might be an institution that refuses to recognize a trans persons [sic] identity (not calling them by their preferred name; not allowing them to change their legal documentation; not allowing them to access services because they are trans). There is, of course, an intimate relation between these different forms of violence. Verbal harassment, the threat or reality of physical assault, and the lack of recognition from state institutions combined to make the everyday lives of trans women challenging indeed. As a result, the overall health and safety of trans people is [sic] severely compromised. This general context of violence makes it difficult for trans people to be well integrated in society, to find gainful employment.

As the foregoing passage makes clear, Dr. Namaste includes in the term “violence” a wide range of behaviours beyond actual physical violence. To my mind, while meaningful, perhaps, in the context of sociological discourse, this conflation of different phenomena under the omnibus definition of “violence” is far too broad to be useful in this case and would only serve to confuse the jury concerning the extent to which transgender people are subjected to actual physical violence. Indeed, it is so broad, in my view, that it raises the concern Doherty J.A. articulated in Abbey, at para. 63, namely, that “certain terminology used by the expert [may be] unnecessary to the opinion and potentially misleading.”

[23] Another potential cost associated with expert evidence is that it may distract the jury. In this vein, I note that, if permitted, Dr. Namaste would testify, inter alia, that:

social and institutional discrimination exists against transgender persons in Canada and North America
there is legal discrimination against transgender persons in Canada and, more particularly, Canadian law is inadequate to protect transgender persons engaged in prostitution
in other, less tolerant societies transgender persons are persecuted and transgender persons may encounter violence if deported from Canada to other jurisdictions
transgender people have a deep mistrust of police and other law enforcement authorities
in incarceral settings, transgender persons who identify as women suffer violence at the hands of both staff and other inmates
the incidence of suicide and/or attempted suicide is higher among transgender persons than among non-transgender people
there is a greater incidence of domestic violence among transgender people.

While, doubtless, these issues are important from a sociological standpoint, they are irrelevant to the questions this jury must grapple with, namely, who initiated the conflict and whether Ms. Dawkins’s reaction was proportionate to defend against what she says was Mr. Foster’s attack. I appreciate that as “the gatekeeper” I could have admitted only some of the evidence: Abbey, at para, 63. That said, the tenor of Dr. Namaste’s report is such that I was left with the distinct impression that, had I allowed her to testify, it would have been difficult to constrain her from expounding on what, for her, is clearly a closely intertwined constellation of sociological factors.

[24] A further potential cost is the extent to which “[e]xpert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases”: Abbey, at para. 71. At para. 72, Doherty J.A. went on to cite the observation of Moldaver J.A. (as he then was) in R. v. Clark (2004), 2004 CanLII 12038 (ON CA), 69 O.R. (3d) 321 (C.A.), at para. 107, to wit: “Vigilance is required to ensure that expert witnesses… are not allowed to hijack the trial and usurp the function of the jury.” Dr. Namaste is highly qualified in her field and, taken together with the extent to which her anticipated evidence involves a lengthy recitation respecting the myriad injustices suffered by the transgender community, I was concerned that the jury would be, in the least, distracted and/or potentially misled by the degree to which her proposed evidence would amplify the narrow issues upon which the applicant was, ostensibly at least, seeking to adduce it.

II. What reactions to physical violence are to be expected from transgender persons?

[25] The second basis upon which the applicant seeks to call Dr. Namaste is in support of the proposition that transgender people are apt to respond to violence in a manner with which the average juror would be unfamiliar. More particularly, Dr. Namaste would say, if permitted, that these responses are conditioned by the reality of being transgender. Inasmuch as the transgender population is said to comprise only 0.5% of the population at large, counsel argues that the jury is likely unfamiliar with this population and, equally, unfamiliar with how they are apt to respond to violence. For the reasons that follow, I have concluded that the proposed evidence (i) exceeds, to a certain extent at least, Dr. Namaste’s expertise; and (ii) more importantly, is unnecessary.

Expertise

[26] Dealing first with the question of expertise, at para. 58 of her report, speaking of working with transgender people in the context of self-defence training, Dr. Namaste indicates that the “appeal to self defence as an appropriate response to the violence directed against trans people is intimately related to their sense of self.” She then goes on to mention a particular participant in a study to which she refers and says, in relation to that participant:

…Kate recognizes the constant violence that will be directed against a visible trans person like herself. And in response to such violence, she is prepared to fight if necessary. Her core sense of self as a woman is so strong, that it takes priority over the constant threat of being physically assaulted. Fighting back thus goes to the heart of defending her right to simply be who she is. She will fight back, if necessary, because to not do so negates her very sense of self-and that is an impossible choice.

[27] Dr. Namaste continues this theme, in the next paragraph, where she states:

The response of trans people to physical violence against them thus needs to be understood in two manners. Firstly, this use of physical force to resist is a response to the magnitude of violence directed against them, and an attempt to lessen its impact if they find themselves in such a situation. Secondly, the appeal to physical resistance of a trans individual confronted with physical attack is intimately related to their core sense of self, and the possibility of simply existing. Trans people confronted with violence will fight back, physically, to survive. In my research with trans people, as well as the frontline service provision in which I have engaged, trans people recounted that they will live their lives and bodies in order to respect their core sense of self.

[28] The psychological rationale that Dr. Namaste contends underlies the expected response of transgender persons to violence is a subject matter upon which, in my respectful view, she is not properly qualified to opine. She is neither a psychologist nor a psychiatrist. Thus, while as a sociologist she is qualified to speak of the ways in which the people she has studied behave, she has no expertise in terms of explaining why they behave the way they do in these situations.

Necessity

[29] Turning to the question of necessity, to begin, I understand that necessity should not be judged by “too strict a standard”: R. v. Mohan, at para. 22, citing R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24. That said, in the context of expert evidence, the word “necessary” means evidence “which is likely to be outside the experience and knowledge of a judge and jury… [and] must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature”: loc. cit.

[30] In support of her argument that the proposed evidence is necessary, the applicant relies heavily on R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852. In that case, because the deceased was not attacking her at the time she shot him, the appellant’s action was, on its face at least, not in keeping with self-defence as that defence is generally comprehended. But this is not such a case. Here, Ms. Dawkins contends that she was defending against a savage attack that was ongoing at the very moment she stabbed Mr. Foster; in other words, this is a classic case of self-defence.

[31] At para. 55 et seq. of her report, Dr. Namaste expounds on the responses to be expected of transgender people when subjected to violence. In her concluding paragraph, she states that transgender persons adapt to what she asserts is a greater incidence of violence against them by employing one or more of various techniques; these include avoiding situations where violence is likely to arise and, more pertinent to this case, reacting violently when they feel the need to protect themselves against injury or death. Dr. Namaste postulates that there is a special genesis to this reaction that has to do with the need of transgender people to defend what they perceive as “their core sense of self…” But this reaction is, it seems to me, no different in kind than what, irrespective of anatomical gender or gender orientation, the vast majority of Canadians (or human beings everywhere, for that matter) do when confronted with physical violence. That said, the jury does not require an expert to assist them to understand what Ms. Dawkins says her reaction was to the violence she says Mr. Foster perpetrated on her.

[32] I accept that, could it be shown that transgender people react to violence in a manner peculiar to them, and there was a basis in the evidence upon which to conclude that Ms. Dawkins reacted in that manner, then necessity would be made out. That said, at the risk of repetition, I am not persuaded that, when confronted with physical violence, transgender people react in any fundamentally different way than non-transgender people. I conclude, therefore, that this aspect of Dr. Namaste’s proposed evidence is not necessary.

[33] Further, as well as being unnecessary, it seems to me that the proposed evidence as to the manner in which transgender people react to violence carried with it the same potential for prejudice as the evidence respecting the degree of violence experienced by transgender people.

RESULT

[34] In the result, for the foregoing reasons, I concluded that the probative value of the evidence is significantly outweighed by its potential prejudice and, thus, it ought not to be admitted.

R. Clark J.

Released: November 6, 2018

COURT FILE NO.: CR-17-7000207

DATE: 20181106

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent

– and –

CURTIS (MOKA) DAWKINS Applicant

REASONS FOR DECISION

R. Clark J.

Released: November 06, 2018

Regina v. Dawkins, 2018 ONSC 6395

Case Summary

INTRODUCTION

POSITION OF THE APPLICANT

POSITION OF THE RESPONDENT

DISCUSSION

A. Issues Not Contested

Expertise

Absence of an Exclusionary Rule

B. Contested Issues

I. Relevance: Who Initiated the Violence?

Logical Relevance

Legal Relevance

Probative Value

Potential Prejudice

II. What reactions to physical violence are to be expected from transgender persons?

Expertise

Necessity

RESULT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 2