COURT FILE NO.: 28/18
DATE: 2019-06-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ROGER CRAIG SHORT
Defendant/Applicant
Nicole Godfrey and David Rows, for the Respondent
David G. Bayliss, for the Defendant/Respondent
HEARD: June 5, 2019
THOMAS, RSJ.:
reasons on expert evidence
[1] The Defence brings this application for an order to admit the expert testimony of Mary L. S. Vachon, RN, PhD (“Vachon”) to provide an opinion on the issue of traumatic grief. More specifically, the Defence seeks to have Vachon discuss the normalcy of conduct by a loved one in discarding personal items of a deceased as a form of memorial or other coping mechanism.
[2] That is the nature and scope of the proposed expert evidence (R. v. Abbey 2009 ONCA 3534 para 62 (Abbey).
[3] At the conclusion of the Defence argument I dismissed the application while giving brief oral reasons with written reasons to follow. These then are those reasons. They are meant to amplify my oral comments while considering the relevant caselaw but not to in any way detract or diminish my message delivered on the day the application was heard.
Background
[4] Sometime during the evening of October 18, 2008 Barbara Short was murdered. It seems likely she was struck over the head and left to die face down on a woodpile at the rear of the Short home. Craig Short came upon his wife’s bloodied body behind their home and called 911.
[5] Barbara Short had written a body of poetry about nature, her life and loves. The poems were written in a spiral notebook and on her computer. On October 20, 2008 Craig Short discarded the torn poetry notebook at Bluewater Park in Sarnia. This location is along the St. Clair River and under the Bluewater International Bridge. He was under physical and electronic surveillance at the time. The pages, or some of them, were retrieved by police.
[6] It is the theory of the Crown that Craig Short was destroying circumstantial evidence of motive, that is that Barbara Short was having an affair and loved someone else. Although the Defence has yet to call evidence, Craig Short told his daughter and investigators that he was in fact setting some of Barbara Short’s poetry free in the water.
Analysis
[7] Mary L. S. Vachon is a psychotherapist and a professor in the Department of Psychiatry at the University of Toronto. In addition, she has a private counselling practice primarily in the areas of cancer and bereavement. She has a lengthy and impressive curriculum vitae evidencing a lifetime of work counselling the dying and the bereaved they leave behind. Her experience and expertise in matters of bereavement is not disputed by me. Her report suggests that grieving persons may appear irrational and immature. They may engage in conduct that others might view as guilty conduct but they may in fact be deactivating or doing what they can to cope with their grief in a totally confusing and upsetting situation which they may find incomprehensible.
[8] The test for admission of expert opinion evidence was considered by the Supreme Court of Canada in R. v. Bingley, 2017 SCC 12, [2017] S.C.J. No. 12 and the analysis discussed at paras. 13 and 14:
[14] The expert evidence analysis is divided into two stages. First, the evidence must meet the four Mohan factors: (1) relevance; (2) necessity; (3) absence of an exclusionary rule; and (4) special expertise. Second, the trial judge must weigh potential risks against the benefits of admitting the evidence: White Burgess, at para. 24.
[15] If at the first stage, the evidence does not meet the threshold Mohan requirements, it should not be admitted. …
[9] In this application, I have asked counsel to direct submissions only to the “necessity” criteria.
[10] Clearly expert evidence is demanded in many serious criminal cases. It is “of necessity, a mainstay in the litigation process.” (Abbey, para. 73). In this case, I have the opinion evidence of a forensic pathologist, a forensic neuropathologist and four forensic scientists to assist me in understanding the mechanism of death of Barbara Short and the trace evidence left behind.
[11] The test for “necessity” in receiving expert evidence has been expressed in a number of ways:
“where it can be said that lay persons are apt to come to the wrong conclusion without expert assistance. …” (R. v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.) para 46.)
“what is required is that the proposed expert possess special or peculiar knowledge that goes beyond that of the trier of fact. (R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.) p. 414-415)”
“…testimony going beyond the ordinary experience of the trier of fact.” (R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223)
“the basic requirement of expertise for an expert witness is that the witness has expertise outside the experience and knowledge of the trier of fact.” (Bingley, para. 19)
“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.” (R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, para. 56)
[12] In R. v. Corner, 2017 ONSC 412, McKelvey J. rejected potential expert evidence considering the accused’s possible reaction to a stressful event which might result in a fight or flight reaction. The Court ruled that the jury did not need the specialized assistance of a psychiatrist.
[13] In R. v. Whiteway, 2015 MBCA 24 the Court found “in circumstances such as these, the judge did not need the specialized assistance of a psychiatrist to consider Whiteway’s reaction to ordinary stress from an external grief, because the effect of grief plays on normal persons is not beyond the knowledge and experience of a judge or jury.” In that case a friend of the accused had been stabbed on the street as part of some gang violence.
[14] Mr. Bayliss argues that Craig Short was not dealing with “ordinary stress” but rather traumatic stress leading to traumatic grief thereby taking Short’s situation out of the knowledge and experience of the trier of fact.
[15] As I stated at the conclusion of the argument, I accept that even in ordinary stressful events such as coping with the loss of a loved one, people react very differently. I am aware as the trier of fact that a deceased’s personal belongings may be retained by loved ones or may be disposed of quickly, ashes may be spread, fires may be lit. There is no deemed level of normalcy to the actions of someone who is grief stricken. If that is so in the situation where the death is from natural causes, frankly the situation Ms. Vachon knows well, then how could it be any less so when your loved one is murdered?
[16] As the trier of fact I have the experience and knowledge to form a correct judgment about this issue unassisted by the special knowledge to be supplied by the proposed expert.
“Regional Senior Justice B. G. Thomas”
Regional Senior Justice B. G. Thomas
Released: June 11, 2019.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROGER CRAIG SHORT
REASONS ON EXPERT EVIDENCE
Thomas RSJ.
Released: June 11, 2019.