RULING ON APPLICATION TO ADDUCE EXPERT EVIDENCE

COURT FILE NO.: CR-17-735 DATE: 20190516

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Paul Renwick and Alexander Cornelius, for the Crown

- and -

JUSTINE ORDONIO Cate Martell and Daisy McCabe-Lokos for the Accused, Justine Ordonio

HEARD: April 17, 2019

Baltman J

Introduction

[1] On April 10, 2015, the body of Teresa Hsin was discovered slumped over in the driver’s seat of her car. She had been stabbed multiple times. The Crown’s theory is that Mr. Ordonio, together with Mark Dookhram, carried out the murder, because they were paid to do so by Ms. Hsin’s son, Eric Lu. Dookhram and Lu are being tried separately.

[2] Mr. Ordonio was arrested on November 10, 2015, and underwent questioning for nearly 13 hours by Detective Mark Heyes. For the first eight hours of the interview, Mr. Ordonio denied any involvement in the offence. However, after he was confronted with extensive incriminating evidence (including Mr. Dookhram’s admission he was the getaway driver and assertion that Mr. Ordonio was the stabber), Mr. Ordonio adopted the version given by Mr. Dookhram but with the roles reversed, i.e. with Mr. Ordonio as the driver and Mr. Dookhram as the stabber.

[3] Mr. Ordonio argues that his confession was false and resulted from a number of improper interview techniques employed by Det. Heyes, including outright lies, implied promises and threats, and the use of long monologues laying out the state’s evidence which were later adopted by Mr. Ordonio.

[4] On January 7, 2019, I ruled Mr. Ordonio’s statement was voluntary. My reasons followed on March 21, 2019: see R. v. Ordonio, 2019 ONSC 1804.

[5] The trial commenced on March 25th, 2019. Shortly after Det. Heyes’ evidence was completed, Mr. Ordonio sought to lead expert evidence from Todd Barron. Mr. Barron holds a Master of Science degree in Experimental Psychology from Memorial University of Newfoundland, and is also a former police officer and polygraph examiner. Over many years he developed and delivered training programs on interrogation techniques, and has published several papers on the subject of investigative interviewing. The proposed areas on which Mr. Barron would give evidence are:

(1) The tendency of certain interview techniques to produce unreliable or false information; (2) The personal characteristics that may render an interviewee more vulnerable to techniques which increase suggestibility and compliance, and whether any of these characteristics are present in this case; and (3) The techniques used in this case and their implications for the reliability of the information obtained.

[6] A voir dire was conducted on April 17, 2019, in which Mr. Barron testified. On April 18, 2019, I ruled the proposed evidence inadmissible, with reasons to follow. These are my reasons.

Legal Framework

[7] The relevant legal test for the admissibility of expert evidence is not in dispute. It was helpfully summarized by Laskin J.A. in R. v. Abbey, 2017 ONCA 640, at para. 48 (Abbey #2). This is a two-stage analysis. At the first stage, the party tendering the evidence must establish four preconditions to admissibility:

a) The evidence is logically relevant; b) The evidence is necessary to assist the trier of fact; c) The evidence is not subject to any other exclusionary rule; and d) The expert is properly qualified, which includes the requirement that the expert be impartial and unbiased.

[8] If the evidence meets these four preconditions to admissibility, then in the second stage the trial judge exercises her function as gatekeeper by determining whether the probative value of the evidence outweighs its prejudice.

Submissions and Analysis

[9] While counsel made submissions on all prongs of the test set out above, in my view this motion turns primarily on the necessity and expertise components, and therefore I shall focus on those.

a) Necessity

[10] On the question of necessity, Mr. Ordonio argues that Mr. Barron has information that is outside the experience and knowledge of a jury. In particular, he claims that the jury needs to be educated on the following issues:

• Why an innocent person may falsely confess to a crime he did not commit;
• That certain interrogation techniques have been shown to produce false information;
• How to recognize those techniques and evaluate Det. Heye’s evidence about the techniques he used.

[11] Mr. Ordonio argues that without this evidence the defence cannot suggest to the jury that various techniques used by Det. Heyes created a risk that he would falsely confess. Det. Heyes’ evidence would be left to stand uncontradicted.

[12] I disagree. The main concerns about the interview in this case involve its length; the aggressive and leading style of questioning; and the physical conditions throughout, such as fatigue, hunger and discomfort. To the extent those concerns exist, they do not require an “expert” to identify them. That is particularly so where, as here, the entire interview was audio and videotaped. Jurors can evaluate whether questions are manipulative or suggestive. They can see when someone is being bullied or badgered. They know that hunger and exhaustion do not bring out reliable answers. In other words, human experience and common sense will suffice. And to the extent they need direction on this, the court can and should provide it.

[13] That was the conclusion arrived at by the Manitoba Court of Appeal in R. v. Pearce, 2014 MBCA 70. There, the trial judge refused to admit expert evidence regarding false confessions. Like this case, the defence alleged that police used the “Reid Technique”, in particular confrontation, deception and minimization of the suspect’s conduct. The Court of Appeal held the trial judge’s refusal to admit that evidence was proper, noting that “a properly instructed jury is quite able to assess the credibility of ordinary individuals in stressful situations”: at para. 89.

[14] The Court of Appeal in Pearce did, however, order a new trial because, based on the appellant’s testimony at trial recanting his confession, there was an air of reality to his claim that he gave police a false confession and the trial judge failed to caution the jury accordingly: at para. 118. At this trial, Mr. Ordonio did not testify. Nonetheless, before the jury watched the video statement, it was cautioned accordingly:

When you are watching and listening to the statement, I ask you to pay careful attention to the circumstances surrounding the taking of the statement, including what was said to Mr. Ordonio and the conditions throughout the interview. You may consider whether the circumstances under which the statement was given were oppressive or overbearing. In particular, consider the duration of the interview and the physical conditions in which it was held, what was said to Mr. Ordonio and how it was said, his reactions, and the behaviour of both men throughout. In other words, consider all the circumstances surrounding the interview in assessing to what extent the statement is reliable and truthful, and what weight you will put on it. It is open to you to give the statement some weight, a lot of weight or no weight.

[Emphasis added]

[15] In my final charge to the jury I repeated those instructions, and added a caution regarding the phenomenon of false confessions:

[I]t is known that people sometimes falsely confess. That does happen, for a number of reasons, including fear, hope, promise or favour. Therefore you should not start with the premise that people only confess to crimes they have actually committed.

[16] A similar approach was taken by appellate courts in two “Mr. Big” cases, where trial judges declined expert testimony about false confessions and how to evaluate the reliability of a confession. The reviewing courts in both R. v. Osmar, 2007 ONCA 50 and R. v. Bonisteel, 2008 BCCA 344 agreed that such evidence was neither relevant nor necessary. In Osmar, Rosenberg J.A. stated at para. 68 that the proposed evidence was “not about matters on which ordinary people are unlikely to form a correct judgment”. In Bonisteel, Levine J.A. observed at para. 69 that the jury could “form a judgement based on their own experience, assisted by instructions from the trial judge”. See also R. v. Omar, 2016 ONSC 3066, at paras. 17-44, where Molloy J. rejected the defence application for expert opinion evidence from a psychologist regarding police interrogations and confessions.

[17] In this case I similarly conclude that the proposed evidence is not necessary. It concerns matters about which the jury can form a judgment based on their own experience, assisted by instructions from me as the trial judge.

b) Expertise

[18] Mr. Ordonio asserts that Mr. Barron possesses unique background and knowledge that qualifies him to give expert opinion evidence. A significant part of that is his Master of Science degree in psychology. However, our Court of Appeal has identified the need for great caution before admitting “expert” witnesses in the behavioural sciences. The court must first be satisfied that the subject matter is a branch of study in psychology “concerned with a connected body of demonstrated truths or with observed facts systematically classified and connected by a common hypothesis operating under general laws”: R. v. McIntosh, (1997), 35 O.R. (3d) 97 (C.A.), at para. 15, leave to appeal to SCC refused, [1998] 1 S.C.R. xii.

[19] I recognize that courts have permitted expert testimony from mental health physicians to assist juries in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person. For example, in R. v. Lavallee, [1990] 1 S.C.R. 852, the Supreme Court upheld the trial judge’s admission of psychiatric evidence concerning battered women on the basis that it would be difficult for a lay person to comprehend “battered wife syndrome.” Several other cases have permitted expert testimony in the field of child sexual abuse, to educate the trier of fact on the unique challenges associated with children’s memories, cognitive development and language abilities: R. v. G.C. (1996), 144 Nfld. & P.E.I.R. 204 (C.A.); R. v. P.M., [2000] O.J. No. 1622 (S.C.); and R. v. F.C., 2015 ONSC 6428.

[20] In all those cases the driving factor supporting admission of the expert testimony was that the proffered experts had special expertise that transcends ordinary experience. That is not this case. While Mr. Barron has studied and written about the relative merits of different interview techniques, he is not qualified to discuss – nor is the defence advancing – that the confession in this case is affected by a particular pathology or syndrome.

[21] In addition, several aspects of Mr. Barron’s approach to this assignment are troubling. First, despite acknowledging the importance of videotaped confessions, where the viewer can observe the entire interaction firsthand, Mr. Barron admitted he has only watched “parts” of the interview. That he claims to have read the transcript multiple times is not the same.

[22] Second, and on a related note, he has not interviewed or assessed the accused, and therefore has limited basis to conclude that he is potentially “at a heightened risk for suggestibility and compliance”. Had Mr. Barron watched the entire interview and/or assessed the accused himself, he may well have concluded that Mr. Ordonio was not a meek “lamb being led to the slaughter”, as the defence has portrayed here.

[23] Third, his entire report is focussed on alleged errors and abuses by Heyes. There is no discussion of whether Det. Heyes did anything correctly and if so, what. This imbalance undermines Mr. Barron’s claimed neutrality.

[24] Given that the first step of the test for expert evidence is not made out, it is not necessary for me to consider the second step of that test with regard to probative and prejudicial effect.

Conclusion

[25] It is one thing to say that jurors should be alerted to the risks of an unreliable confession. It is another thing entirely to accept that the subject is a recognized branch of psychology. That is not apparent from the evidence before me. Even if it is, it does not in this case meet the Abbey test for necessity, nor does the proposed witness have the required objectivity.

[26] For the above reasons, the application was dismissed.

Baltman J Released: May 16, 2019