COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191212
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
Rick Nathanson and Pamela Santora, for the Crown
Sean Robichaud and Chantelle LaFitte, for Gavin MacMillan
Uma Kancharla, for Enzo de Jesus Carrasco
HEARD: September 24, October 1 and 4, 2019
M. Dambrot J.:
[1] This ruling concerns an application by the Crown to have the testimony of two expert witnesses admitted in evidence.
BACKGROUND
[2] The accused are charged in an indictment with four offences: gang sexually assaulting the complainant (s. 272(1)(d) of the Criminal Code); sexually assaulting the complainant (s. 271 of the Code); administering a stupefying or overpowering drug to the complainant to enable their commission of the sexual assault (s. 246(b) of the Code); and forcibly confining the complainant (s. 279(2) of the Code). They are being tried by me with a jury.[^1]
[3] The Crown alleges that on December 14, 2016, at about 8:30 p.m., the complainant arrived at the College Street Bar in Toronto to meet a friend. At that time, the bar was owned by Mr. MacMillan and managed by Mr. De Jesus. The bar was offering bartender training that evening, and the complainant’s friend was one of the trainees. The bar was closed to the public.
[4] Ultimately, only the complainant and Mr. De Jesus remained in the bar. While the two of them were alone, and after Mr. De Jesus had served the complainant several alcoholic beverages, he put his hand down the front of her pants on three occasions. The complainant remained in the bar with Mr. De Jesus until they left together at 10:20 p.m.
[5] The complainant and Mr. De Jesus returned to the bar at about 11:30 p.m. When they returned, the complainant was stumbling and hardly able to stand. She appeared to be highly intoxicated. From then on, she was alone in the bar initially with Mr. De Jesus, and then, from about 11:45 p.m., with the two accused, except for a short time when a third man arrived to deliver a quantity of cocaine. The two accused repeatedly administered cocaine to the complainant.
[6] The complainant remained in the bar with the two accused until 7:00 a.m. on December 15, 2016. In the intervening time, she was involved in a variety of sexual acts with both Mr. De Jesus and Mr. MacMillan. Much of this activity was video recorded by the bar’s surveillance cameras. The video has been preserved and will be played for the jury.
[7] After the complainant left the bar, Mr. De Jesus took her to his residence, where further sexual acts took place.
THE APPLICATION
[8] The Crown proposes to call Dr. Kari Sampsel as an expert witness. Dr. Sampsel is currently a staff physician in the Department of Emergency Medicine at The Ottawa Hospital, and the Medical Director of the Sexual Assault and Partner Abuse Care Program at that hospital. The Crown has adduced evidence on a voir dire in an application to have me qualify Dr. Sampsel as an expert able to give expert evidence in the following five areas:
The clinical effects on humans of the consumption of alcohol and drugs, including but not limited to clobazam, carbamazepine, topiramate, cocaine, and ketamine, individually and in combination with one another;
The ability of the human body to process alcohol and drugs, individually and in combination;
The physical and psychological effects of the consumption of the above substances, individually or in combination, including on memory, consciousness, and cognitive ability;
The effects of consumption of the substances listed in item 1 on the complainant, including on memory, consciousness, and cognitive ability, based on a review of surveillance videos and other material in this case; and
Emergency Medicine, including the diagnosis and treatment of injuries and illnesses, and the interpretation of injuries relating to alleged sexual assaults, including genital and perigenital injuries.
[9] The Crown also proposes to call Ms. Judy Waldman, a nurse practitioner who is employed as a sexual assault nurse-examiner at Women’s College Hospital’s Sexual Assault/Domestic Violence Care Centre, as an expert witness. Ms. Waldman performed both a medical and a forensic examination of the complainant at St. Joseph’s Hospital on December 15, 2016. Her evidence is largely not opinion evidence, but the Crown does propose to adduce opinion evidence from her concerning the painfulness of the extensive thigh and perigenital bruising she observed on the complainant and the frequency of finding such bruising. Counsel for Mr. MacMillan conceded her qualification to give such evidence. Counsel for Mr. De Jesus did not, but made no submissions on the issue. Ms. Waldman is obviously qualified to give such evidence, and all of the prerequisites to its admissibility are easily met. I admitted her evidence and will say no more about it.
[10] I also admitted the expert opinion evidence of Dr. Sampsel, with reasons to follow. These are those reasons.
THE ADMISSIBILITY OF EXPERT EVIDENCE
[11] The principles that control the admissibility of expert evidence have most recently been succinctly and authoritatively summarized by Watt J.A. in R. v. Evans, 2019 ONCA 715, at paras. 133-139:
[133] The authorities teach that the admissibility of expert opinion evidence is to be determined in accordance with a two-step analysis: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19, 20, 22, 23, 24; R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301, at para. 76, leave to appeal refused, [2010] S.C.C.A. No. 125; R. v. Johnson, 2019 ONCA 145, at para. 49.
[134] At the first step of the analysis, it falls to the proponent of the evidence to establish, on the balance of probabilities, the threshold requirements of admissibility. These include, but are not limited to, relevance and a properly qualified expert: White Burgess, at para. 23; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25; R. v. J.- L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at paras. 33, 35-36, 47. Evidence that does not meet these requirements should be excluded: White Burgess, at para. 23.
[135] At this first step, relevance refers to logical - not legal - relevance: White Burgess, at para. 23; J.- L.J., at para. 47; Abbey, at para. 82. Relevance is a matter of everyday common sense and experience. It is not some inherent characteristic of an item of evidence. It is relative, not absolute. It eschews per se or bright line rules. We assess the relevance of items of evidence in the context of the entire case and the positions of counsel. An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than that fact would be without that evidence through the application of everyday experience and common sense: Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at pp. 730-32; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-5.
[136] The logical relevance of expert evidence is determined by asking two questions:
i. Does the proposed expert opinion relate to a fact in issue at the trial?
ii. Is the expert opinion evidence so related to a fact in issue that it tends to prove it?
The determination of whether proposed expert opinion evidence is logically relevant is a matter of law to be decided by the trial judge: R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 137 C.C.C. (3d) 225 (Ont. C.A.), at para. 77, application for leave quashed for want of jurisdiction, [2000] S.C.C.A. No. 16.
[137] Expert evidence on a subject must be given by an expert, that is to say, by a witness who is shown to have acquired special or peculiar knowledge of a subject through study or experience. Such evidence can only assist the trier of fact to the extent that the witness has acquired special knowledge about that subject that the average trier of fact lacks: Mohan, at p. 23; K. (A.), at para. 103. If the proposed expert's special or peculiar knowledge of the subject on which he or she is tendered to testify is minimal, he or she should not be qualified as an expert on that subject: K. (A.), at para. 103.
[138] At the second step, the gatekeeper stage of the admissibility analysis, the judge balances the potential risks and benefits of admitting the expert opinion evidence that has satisfied the threshold admissibility requirements. By this balancing, the judge decides whether the potential benefits of admitting the evidence justify the risks associated with its introduction. The relevance and reliability of the evidence and its necessity to assist the trier of fact in the correct disposal of the case, on the one hand, are measured against the counterweights of consumption of time, prejudice and confusion, on the other. The reliability versus effect factor is of special importance: Mohan, at p. 21; J.-L.J., at para. 47; White Burgess, at paras. 19, 24.
[139] The case-specific nature of the cost-benefit analysis at the second step of the admissibility inquiry attracts deference from appellate courts, absent an error of law or of principle, a misapprehension of the evidence or a plainly unreasonable conclusion: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 12-13.
[12] As Watt J.A. noted, the threshold requirements for the admissibility of expert opinion evidence include, but are not limited to, relevance and a properly qualified expert. In addition, as part of the threshold showing, the proponent of the evidence must also establish the necessity of the evidence in assisting the trier of fact and the absence of an exclusionary rule.
[13] The standard of necessity requires the opinion to be more than helpful, but it is not too strict a standard. The opinion must be necessary in the sense that it provides information that is likely to be outside the experience and knowledge of the trier of fact: Mohan, at para. 22.
[14] I will proceed to apply these principles to the application here.
APPLICATION OF THE PRINCIPLES
1. THRESHOLD REQUIREMENTS OF ADMISSIBILITY
RELEVANCE
[15] The Crown argues that Dr. Sampsel’s proposed evidence is relevant to the following issues in relation to the sexual assault charges: (1) unconsciousness; (2) the capacity to consent; (3) the credibility of the complainant’s evidence about her memory of the events in question and the significance of her pain tolerance, repetitive movements, and fragmented and disassociated memories; and (4) the complainant’s physical injuries, including the force required to inflict them and their painfulness.
[16] The Crown also argues that in relation to the charge of administering a stupefying or overpowering drug, Dr. Sampsel’s proposed evidence is relevant to the issue of whether a stupefying substance was ingested by the complainant.
[17] I will briefly consider the relevance of each category of evidence in turn.
(1) Unconsciousness
[18] Dr. Sampsel reviewed the video of the sexual encounter involving the two accused and the complainant. It is her opinion that at certain points, while the accused are engaged in sexual acts with the complainant, the complainant is unconscious. Since a person cannot consent to sexual activity when they are unconscious (see s. 153.1(3)(a.1) of the Criminal Code), this evidence, if admissible, is obviously relevant. Dr. Sampsel’s evidence tends to prove that at times during the sexual encounter in issue, the complainant was unconscious, and as a result, was not consenting.
(2) Capacity to consent
[19] Dr. Sampsel is of the view, based on the physical indicia of impairment that she observed at the times in the video when the complainant is not unconscious together with the complainant’s description of blackouts in memory, that the complainant’s cognitive abilities were impaired by alcohol and/or drugs to the extent that she lacked executive functioning and decision-making capability. If admissible, this evidence would be relevant to the issue of the complainant’s capacity to consent (see R. v. G.F., 2019 ONCA 493 and s. 153.1(3)(b) of the Criminal Code). Dr. Sampsel’s evidence tends to prove that as a result of the complainant’s impairment, she lacked the capacity to consent at times during the sexual encounter.
(3) Pain tolerance, repetitive movements and memory
[20] Dr. Sampsel identified certain behaviours on the part of the complainant that were recorded in the video, such as apparent high pain tolerance and repetitive movements, that are not associated with the drugs that the complainant ingested that were detected in her toxicology screening. Rather, she said, these behaviours are associated with ketamine or drugs similar to ketamine. The complainant’s fragmented and dissociated memories of the evening in question are also ketamine-associated behaviours. Dr. Sampsel will also say that the failure to detect ketamine in the complainant’s blood and urine sixteen hours after the event falls within the timeframe of undetectability in people taking some anti-depressants that stimulate the rate at which the liver processes drugs. This evidence is relevant because it may assist the jury in contextualizing and understanding the complainant’s evidence and may help the jury to determine whether or not her limited ability to describe the events should lead them to discount her evidence. It is, of course, also relevant to the charge of administering a stupefying or overpowering drug to the complainant to enable their commission of the sexual assault because it tends to prove that the two accused administered a stupefying drug to her in addition to alcohol and cocaine.
(4) Physical injuries
[21] Dr. Sampsel is of the view that the injuries suffered by the complainant would have required significant force to inflict and would have been painful when they occurred. This evidence is relevant to the issues of her level of intoxication, consent, and whether or not the accused took reasonable steps in the circumstances known to them at the time to ascertain that the complainant was consenting as required by s. 273.2 of the Code (see R. v. Barton, 2019 SCC 33, 376 C.C.C. (3d) 1, at para. 108). This evidence tends to prove that the complainant did not consent, and that the accused did not take reasonable steps to ascertain that she was consenting.
Conclusion Concerning Relevance
All of the foregoing evidence is relevant. For each of the categories of evidence to which the Crown argues Dr. Sampsel’s evidence is relevant, Dr. Sampsel’s evidence renders the facts the Crown seeks to establish at least slightly more probable than those facts would be based on the application of everyday experience and common sense.
NECESSITY
[22] As I have noted, relevant evidence is necessary when it provides information that is likely to be outside the experience and knowledge of the trier of fact. I will consider the necessity of each of the above categories of evidence in turn.
(1) Consent
[23] At first blush, it seemed to me that the jury would not be in need of expert testimony to assess whether or not the complainant was unconscious at certain points in time during the sexual activity and was, as a result, unable to consent. But after reviewing the evidence of Dr. Sampsel, I reach a different conclusion. I considered, for example, her evidence on the voir dire about one particular video clip in which both accused are engaged in sexual acts with the complainant. In that clip, Mr. De Jesus lifted the complainant, carried her over his shoulder, and placed her in a kneeling position over a bar stool. Mr. MacMillan then stood in front of her face, which was positioned away from the camera, while Mr. De Jesus stood behind her. Mr. MacMillan held the complainant’s head up by the hair, placing her face in front of his penis. The complainant then appeared to be performing oral sex on him, while Mr. De Jesus stood behind her, moving her body forward and back while digitally penetrating her. At one point during this interlude, the complainant’s head and body flopped backwards. Mr. MacMillan pulled her back into place by the hair.
[24] In viewing this clip, I was readily able to discern that the complainant was not fully in control of her faculties. But because of what, and to what extent, I could not say. Perhaps as a result of the ingestion of alcohol or cocaine, since both were in her blood 16 hours after the event, according to a toxicological report. I do not know if her condition was consistent with the use of those drugs or was more likely caused by something else. Nor could I determine whether or not she was unconscious, and if not, how close to unconsciousness she was. The jury will be in no better position than I am to evaluate these issues.
[25] However, the evidence of Dr. Sampsel provides information outside the experience and knowledge of the trier of fact that may shed light on these questions. For the moment, I will address unconsciousness. Of course, if the complainant was unconscious while the two accused were engaged in sexual acts with her, then she was not consenting. Dr. Sampsel will explain the significance of the complainant’s hands, arms, and legs being held in a position of passive relaxation, even while falling backward; she will explain the significance of the complainant showing no reaction to her hair being pulled forcefully; she will explain the significance of the complainant’s skin, subcutaneous tissue, and muscle movement in relation to the force of the digital penetration of her vagina by Mr. De Jesus; and she will explain why it is unlikely, in her view, that the complainant was faking unconsciousness. This evidence will take on even greater significance, if, as I anticipate, the accused testify that the complainant’s apparent level of unconsciousness was as a result of acting.
[26] Dr. Sampsel’s evidence on this issue is necessary in the sense that it provides information that is likely to be outside the experience and knowledge of the trier of fact.
(2) Capacity to consent
[27] The toxicological report shows that the complainant had a number of drugs and intoxicants in her system at the time of the events, including alcohol, cocaine, and medications for epilepsy and depression. I do not doubt that some jurors will have a general idea about the effects of the consumption of alcohol, although their understanding may or may not be accurate. But the jury will not know the effects of these drugs and intoxicants individually on the complainant’s cognitive functioning, far less in combination with each other and with any additional drugs that she may have ingested. Dr. Sampsel is able to give evidence about the clinical effects of alcohol and various drugs, including their effects on cognitive abilities, individually and in combination. Without this knowledge, the jury will be ill-equipped to make a determination about the complainant’s capacity to consent to the sexual acts at issue. Such expert evidence has been described as essential (see G.F. at para. 37, R. v. J.R. (2006), 2006 CanLII 22658 (ON SC), 40 C.R. (6th) 97 at para. 20, R. v. Wilson, 2017 ONSC 2868, at paras. 8-13, and R. v. P.N.W., 2017 ONSC 5698 at paras. 35-40, 103 and 130).[^2]
[28] Dr. Sampsel’s evidence on this issue is necessary in the sense that it provides information that is likely to be outside the experience and knowledge of the trier of fact.
(3) pain tolerance, repetitive movements and memory
[29] Dr. Sampsel’s evidence of the connection between (1) pain tolerance, repetitive movements, and fragmented and dissociated memory on the one hand and (2) the ingestion of ketamine on the other may assist the jury in assessing the credibility of the complainant, and in determining whether or not the accused administered ketamine to her. As I have indicated, that determination is relevant to both the sexual assault charges and the charge of administering a stupefying or overpowering drug. The jury could not make any such connections without expert assistance. Expert evidence that the reported symptoms, including effects on memory, are consistent with the ingestion of a particular drug is certainly admissible as circumstantial evidence that such a drug had been ingested by that individual (see R. v. Vant, 2015 ONCA 481, 324 C.C.C. (3d) 10 at paras. 93 and 107, and Wilson, at paras. 8-13).[^3]
[30] Dr. Sampsel’s evidence on this issue is necessary in the sense that it provides information that is likely to be outside the experience and knowledge of the trier of fact.
(4) Physical injuries
[31] As I have said, evidence that the injuries suffered by the complainant would require significant force to inflict and would have been painful when they occurred is relevant to several issues. There can be no doubt that jurors would have some knowledge about these physical injuries and the pain that results from them; but neither can there be doubt that expert evidence is necessary in relation to the interpretation of injuries relating to alleged sexual assaults, and in particular, genital and perigenital injuries. Interpretation of such injuries is outside the experience and knowledge of jurors, and without expert evidence, they would have little or no ability to assess them.
Conclusion Concerning Necessity
[32] All of the foregoing evidence is necessary, and admissible, with one exception. Dr. Sampsel may testify that, in her opinion, when the complainant was not unconscious, she was so intoxicated that she lacked executive function. However, she may not testify that, in her opinion, as a result of her lacking executive function, the complainant was unable to consent to sexual activity. While an opinion that the complainant lacked executive function may go a long way towards an opinion that she was not capable of consenting, Dr. Sampsel’s understanding of consent in the medical context may be different than the meaning of consent in the legal context. For this reason, her evidence on this point might confuse the jury, and will therefore be inadmissible.
[33] I appreciate, however, that Dr. Sampsel’s opinions about unconsciousness and executive function, even without reference to consent, approach ultimate issues in this case. As a result, I have assessed them with the special scrutiny mandated by cases such as J-L.J., at p. 37, and remain of the view that they are admissible.
ABSENCE OF AN EXCLUSIONARY RULE
[34] No other rule would exclude any of the evidence of Dr. Sampsel.
A PROPERLY QUALIFIED EXPERT
[35] As I have said, a properly qualified expert is a person who is shown to have acquired special or peculiar knowledge of the subject in question, through study or experience, that the average trier of fact lacks. Here it must be shown that the expert has such knowledge on the five subject areas I listed in paragraph 7, above. I turn to Dr. Sampsel’s qualifications.
[36] Since 2008, Dr. Sampsel has held the positions of staff physician in the Department of Emergency Medicine and Medical Director of the Sexual Assault and Partner Abuse Care Program at The Ottawa Hospital. She was also the Associate Program Director of the Royal College Residency Program in the Department of Emergency Medicine at the University of Ottawa from 2010 to 2016. She was an investigating coroner in the Office of the Chief Coroner, East Region from 2008 to 2012.
[37] Dr. Sampsel attended the University of Calgary, where she obtained a Bachelor of Science degree in Cellular, Molecular, and Microbial Biology and a Master of Science degree in Medical Science, with a focus in Cancer Biology. She earned her medical degree from Queen’s University and a Diploma of Clinical Forensic Medicine from the Victorian Institute of Forensic Medicine in Melbourne, Australia. She is a Fellow of the Royal College of Physicians and Surgeons of Canada with a certification in Emergency Medicine. She has a very long list of professional and scholarly activities, including a large number of local, provincial, national, and international presentations, many teaching activities, and a number of peer-reviewed publications. Her curriculum vitae and voir dire evidence demonstrate years of specialized study of and experience with the effects of alcohol and drugs.
[38] The areas in which the Crown sought to have Dr. Sampsel qualified are well within her expertise. As a licensed emergency room physician, which is a special practice area for which she has undergone many years of training, she is required to assess consciousness and mental capacity of patients on a regular basis, for various purposes (diagnosis, consent to treatment, safe administration of medication, etc.) and using a variety of techniques, including, in some cases, mainly visual inspections in rushed and urgent circumstances.
[39] Determining whether a patient is capable of consenting to medical treatment or can be safely released from hospital involves a different set of considerations than the legal test for capacity to consent to sexual activity. However, it nonetheless involves observing external indicia of impairment in order to assess cognitive abilities. It also requires a thorough understanding of the global impact of intoxicants on the central nervous system. Dr. Sampsel is required to make these assessments on a regular basis.
[40] Dr. Sampsel is also required to understand the impact and interactions of various drugs, including ketamine in particular, in order to administer ketamine to patients clinically and to assess and treat patients who present at the emergency room under the influence of drugs. She must assess the patient to determine the nature of the drugs taken in order to safely treat the patient. Her training and experience in this area demonstrate her ample qualifications to testify about the possible role of ketamine or other similar drugs in this case.
[41] Her parallel practice as a Sexual Assault Physician and her related training and experience demonstrate that she is similarly qualified to give opinion evidence about the injuries to Ms. Burton documented on her Sexual Assault Evidence Kit.
[42] Dr. Sampsel’s qualifications and knowledge in the areas in which the Crown proposes that she testify were made abundantly clear in her voir dire evidence. While the links between her training and experience and her ability to give the proffered opinions were canvassed thoroughly during examination-in-chief, her qualifications and knowledge were made even clearer during cross-examination.
[43] Counsel for Mr. De Jesus argued that the fact that Dr. Sampsel is an emergency doctor, and not a toxicologist, disqualifies her from testifying about the physical and psychological effects of alcohol and drugs, and, in particular, their effects on memory, consciousness, and cognitive ability. I cannot agree.
[44] Dr. Sampsel was very clear in her evidence in chief that she did not purport to have the expertise of a toxicologist or pharmacologist. While she was trained to understand concepts like elimination and absorption rates, she was drawing on her clinical experience to form her opinions, based on observation, including observation of the effects drugs and alcohol.
[45] I have no doubt that Dr. Sampsel’s training and clinical experience provide the requisite foundation for the evidence she gave. Her candour will ensure that the jury does not misapprehend the basis for her opinions. Moreover, any concern that the jury might think that Dr. Sampsel had the expertise of a toxicologist, a concern I do not share, is eliminated because the Crown is also adducing the evidence of Ms. Wallage, the toxicologist who was responsible for analyzing the blood and urine samples taken from the complainant the day of the alleged offences. She will also give evidence about the nature, effects, and elimination by the body of the drugs found in those samples, and other drugs as well. The jury will understand the difference between the expertise of Dr. Sampsel and that of Ms. Wallage. Indeed, their evidence will likely be complementary, providing the jury with both a clinical and a chemical perspective of drug use.
[46] Counsel for the accused also argued that in considering Dr. Sampsel’s qualifications as an expert, insofar as she will testify about unconsciousness and lack of capacity as a result of intoxication on the basis of her observations of contemporaneous video recordings of the complainant’s appearance and movements (in addition to the toxicological report, the complainant’s statement and her consumption of alcohol and drugs that can be seen on the videos), her opinion is based on novel science which must be subjected to special scrutiny.
[47] Although it is not entirely clear to me precisely where this question should be placed in the Mohan criteria, there is undoubtedly a threshold test of reliability that applies to the validity of scientific evidence based on a theory which has not yet been widely accepted, or the accuracy of which has not been determined (R. v. Trochym, 2007 SCC 6, at para. 28), or to an opinion based on novel or contested science or science used for a novel purpose (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para. 23). However, the evidence in question is in no sense based on novel science. Dr. Sampsel will simply apply her clinical expertise that she ordinarily applies to a person observed in the flesh to a person she observed on a video. The obstacles to her approach (principally her inability to check things like heart rate or to see the eyes of the complainant, the distance between the video camera and the complainant and the distortion of one small part of the video)[^4] are addressed by Dr. Sampsel and in no sense undermine the reliability of the science upon which she relies.
[48] Finally, with respect to the threshold requirements of admissibility, the accused argue that Dr. Sampsel’s evidence is inadmissible because she lacks independence and impartiality. This issue falls to be considered on the first step of the admissibility inquiry, when considering whether the proposed witness is a properly-qualified expert, and, in some cases, at the gatekeeper stage of the admissibility analysis as well. (See White Burgess at paras. 52-54).
[49] With respect to the issue at hand, whether or not the witness is a qualified expert, the question to be asked is whether “the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.” Anything less than clear unwillingness or inability to do so does not lead to exclusion, but instead falls to be considered in the weighing of costs and benefits of receiving the evidence at the gatekeeper stage. The concept of apparent bias is not relevant at the threshold stage of analysis (see White-Burgess at paras. 49-50).
[50] Here, Dr. Sampsel was clear and unequivocal that she understood the duties of an expert witness to the court, that she was aware of her obligation to be an impartial witness and not an advocate, that she understood the requirement to reach independent and unbiased conclusions, and that she had done so to the best of her ability. I believe her. I saw nothing in her evidence on the voir dire to suggest that she was untruthful about understanding her duty or about her willingness to fulfil it. Nor did I see anything that suggested to me that she was mistaken about her ability to do so. I am satisfied that she is willing and able to provide the Court with fair, objective, and non-partisan evidence. I leave the remainder of the attack on her independence and impartiality to the gatekeeper stage of my analysis.
[51] I conclude that Dr. Sampsel is qualified to give expert evidence in each of the five areas outlined by Crown counsel.
2. THE GATEKEEPER STAGE OF THE ADMISSIBILITY ANALYSIS
[52] At this stage of the admissibility analysis, my task is to balance the potential risks and benefits of admitting the expert opinion evidence of Dr. Sampsel. The balancing exercise has been described in many ways, but in White Burgess at para. 24, the Court stated that “Doherty J.A. summed it up well in Abbey, stating that the ‘trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.’”
[53] In this case, I can see no risks to the trial process associated with three of the five areas of expert evidence proffered by Crown counsel. Only the third and fourth give rise to arguments about risk. These are:
The physical and psychological effects of the consumption of the above substances, individually or in combination, including on memory, consciousness and cognitive ability; and
The effects of consumption of the substances listed in item 1 on the complainant, including on memory, consciousness and cognitive ability, based on a review of surveillance videos and other material in this case.
[54] I mention these two areas specifically because they are the only areas of Dr. Sampsel’s evidence that seem to be at all controversial in this case having regard to the issues. Dr. Sampsel’s evidence in these areas is relevant to two key issues: (1) whether or not the complainant could not have consented to sexual activity at certain times because she was unconscious or lacked capacity because of intoxication, and (2) whether the gaps in the complainant’s recollection of the events in question that she claims to have can be accounted for on the basis of her consumption of alcohol and other drugs and therefore do not undermine her credibility.
[55] I begin with the benefits. Insofar as Dr. Sampsel’s evidence relates to observable indicia of unconsciousness and cognitive impairment as a result of intoxication, I consider the evidence to be highly necessary in the sense that it provides information that is likely to be outside the experience and knowledge of the triers of fact and provides them with tools of analysis that they would not otherwise have. In addition, I consider this evidence to be reliable – it falls precisely within her expertise as a clinician.
[56] Insofar as Dr. Sampsel’s evidence relates to memory impairment and to the effects of the consumption of a stimulant by a person already impaired by central nervous system depressants, the necessity of the evidence is equally high, but its reliability is somewhat lower. Although it still falls within her expertise as a clinician, she is less able to explain the process that results in the effects she discusses, and the variables that affect them, than would be a toxicologist. However, to the extent that this might reduce the benefit of her evidence, it is offset by the fact that a toxicologist will also testify about the same subject matter.
[57] I turn to the risks. With respect to the evidence of observable indicia of unconsciousness and cognitive impairment, I see no risks to the trial process, subject to my discussion of bias which will follow. The evidence is easy to understand, and, unlike evidence about the clinical examination of a patient, the jury will have the video that Dr. Sampsel viewed to form her opinions. They can assess for themselves if the indicia of unconsciousness and incapacity she describes are identifiable and bear the significance she attributes to them.
[58] With respect to memory impairment and the interaction of depressants and a stimulant, any small risk associated with her being a clinician and not a toxicologist is offset by the fact that a toxicologist will also testify.
[59] In neither case is there a risk of prejudice flowing from the jury being overawed by Dr. Sampsel’s credentials. In addition, there will be no serious issue concerning the risk of excessive consumption of court time or of causing confusion. That brings me to the question of impartiality.
[60] Regardless of Dr. Sampsel’s qualifications, counsel for the accused argue that she should not be permitted to testify as an expert at all because she is not an impartial witness. She is, they say, merely an advocate for sexual assault complainants, and a witness who was told what the Crown wanted her to say and then said it. Their evidentiary foundation for these conclusions includes: (1) Dr. Sampsel’s employment; (2) her social media communications; (3) the Crown’s correspondence with her preceding her report; and (4) the report itself.
[61] The suggestion that Dr. Sampsel is not an impartial witness, but rather an advocate for sexual assault complainants, starts with her employment as a physician who treats patients complaining of sexual assault, and as the Medical Director of the Sexual Assault and Partner Abuse Care Program at The Ottawa Hospital. I note that in the latter position she is not a frontline worker with survivors of sexual abuse, but, in any event, I see no basis to extrapolate impartiality from her employment.
[62] Dr. Sampsel’s social media communications merit closer consideration. Dr. Sampsel has a Twitter account. For the uninitiated, Twitter is a social networking site, the primary purpose of which is to connect people and allow them to share their thoughts with others. Users do this by posting 140-character[^5] “tweets” that can be seen by anyone who has chosen to follow the user. Users associate their tweets to hashtags which denote the topic of conversation and connect tweets that talk about the same subject matter.
[63] Dr. Sampsel has posted 11,000 tweets over about five years. Her tweets make it clear that she is a supporter of criminal justice system reforms to enhance the delivery of justice to survivors of sexual assault, including education for justice system participants and efforts to eliminate rape myths. In particular, she supported the bill proposed by former interim Conservative leader Rona Ambrose to provide mandatory sexual assault training to federally-appointed judges. In some of her tweets, Dr. Sampsel was critical of certain acquittals in sexual assault cases, and of certain decisions of judges hearing those cases.
[64] None of this troubles me in the least. It is the right of all Canadians to express their views about issues of public importance, including perceived shortcomings in our system of justice. Indeed, if expressing critical views about the delivery of justice to sexual assault survivors raises an appearance of bias, it would disqualify a great many judges, including judges of the Supreme Court of Canada, from sitting on sexual assault cases. No one would imagine that the author of the following words in paragraph 1 of the decision in R. v. Barton, 2019 SCC 33 should be disqualified from sitting on sexual assault cases:
We live in a time where myths, stereotypes, and sexual violence against women -- particularly Indigenous women and sex workers -- are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can -- and must -- do better.
[65] What distinguishes the comments made by Dr. Sampsel from thoughtful statements like the one I have quoted is the language used. The nature of social media gives rise to the concern raised by the accused. To attract attention to even the most scholarly thought in no more than 140 or even 280 characters on social media, the thought must inevitably be simplified, the language used is often colourful, and the hashtag connecting it to other statements concerning similar subject matter may reflect ideas not endorsed by the tweeter. This applies to a few of Dr. Sampsel’s tweets. Most notably, in a tweet dated March 24, 2016, in response to the outcome of the highly publicized prosecution of radio host Jian Ghomeshi, she wrote, “It’s a pathetic but sadly unsurprising day for Canadian justice.” This tweet was communicated using the hashtags, “#WeBelieveSurvivors # Ghomeshi”.
[66] The scrutiny made possible by the ubiquity of social media should be a cause for the exercise of discretion by those hoping to testify as expert witnesses in court. But that said, I do not find that the comments made by Dr. Sampsel raise a concern that she would be anything but scrupulous in giving opinions within the scope of her expertise. If I had any doubt about the matter, they were allayed by the candour she conveyed in the giving of her voir dire evidence. I will return to this point momentarily.
[67] I turn to the argument that Dr. Sampsel is a witness who was told what the Crown wanted her to say and then said it. I do not wish to dignify the suggestion that Crown counsel in any way conveyed to Dr. Sampsel his preference that she reach particular conclusions about unconsciousness, or the possibility that the complainant consumed ketamine, by undertaking a detailed examination of the issue. It is sufficient to say that I have reviewed the entire chain of email correspondence between Crown counsel and Dr. Sampsel and I do not find a hint of support for this allegation. Nor do I find any support for the suggestion that Dr. Sampsel was attempting to give Crown counsel what she assumed he wanted. She testified that the evidence alone took her to her conclusions, and I accept that testimony.
[68] Finally, I turn to Dr. Sampsel’s expert report. In it, she made clear what she considered, what she concluded, and the basis for her conclusions. Dr. Sampsel extracted from the many hours of video approximately one dozen scenarios in which the accused were engaged in sexual acts with the complainant and where Dr. Sampsel concluded that the complainant was either unconscious or heavily intoxicated to the extent that her cognitive function was compromised. Counsel for the accused criticize Dr. Sampsel for failing to also draw attention to other times in the video where, according to them, there are signs that the complainant’s cognitive function is not compromised. I find this criticism to be unpersuasive, for several reasons.
[69] First, the criticism ignores the fact that the Crown does not have to prove that the complainant was not consenting to the sexual activity at every moment during the many hours that the complainant and two accused were together. If that were so, the criticism might bear a little more weight. In fact, however, the Crown has only to prove that at some point, the complainant was not consenting.
[70] Second, unlike a situation where a clinician testifies about an examination of a patient and fails to report on observations that are potentially inconsistent with her conclusions, counsel for the accused, to Dr. Sampsel’s knowledge, have copies of the entire video that she reviewed. Nothing is hidden. Counsel are free to cross-examine her about what they believe to be signs that the complainant’s cognitive function was not compromised, or to call their own evidence about those signs.
[71] Third, Dr. Sampsel was clear in her report that upon a review of the entire video, it was her view that the complainant never regained executive-level functioning throughout the videotaped encounter. The observations relied on by the accused did not lead her to think otherwise.
[72] Fourth, as I said before, Dr. Sampsel exhibited candour in the giving of her voir dire evidence. When the observations relied on by the accused were pointed out to her, she acknowledged that some of them reflected changes in the complainant’s condition. She readily agreed that while there were some instances when the complainant was unconscious, there were other moments when she was more conscious. She explained that people can go in and out of consciousness. But in general, the observations made by counsel for the accused were of short moments and were not significant to her broader assessment of the complainant’s condition. Dr. Sampsel explained that she was not being selective, but was instead attempting to give the best overview she could without providing a minute by minute description. I accept Dr. Sampsel’s description of her effort, but in any event, I am not called upon to grade her report. I have no doubt that in her viva voce evidence, while she quite properly did not resile from her opinion, she dealt with the questions raised fairly and without becoming defensive.
[73] In the end, I am of the view that the allegation that Dr. Sampsel’s evidence should not be admitted because she lacks independence and impartiality must fail. Of course, the issue of her impartiality may still be raised with the jury. Overall, I am satisfied that Dr. Sampsel’s evidence is sufficiently beneficial to the trial process to warrant its admission despite any potential harm to the trial process that may flow from the admission of the expert evidence.
[74] I note that I have not discussed all of the many arguments made by counsel for the accused in support of their position that Dr. Sampsel’s evidence should not be admitted. I have considered them all. Many of them are challenges to Dr. Sampsel’s opinions that are said to go to the question of partiality, but in fact, are the stuff of cross-examination before the jury. Some of them do not merit discussion. None of them affect my conclusion.
DISPOSITION
Dr. Sampsel’s evidence is admissible, with the small exception that she may not testify that, in her opinion, as a result of the complainant lacking executive function, the complainant was unable to consent to sexual activity.
M. DAMBROT J.
RELEASED: December 12, 2019
COURT FILE NO.: CR-17-10000701-000 and CR-17-10000826-0000
DATE: 20191212
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
GAVIN MacMILLAN
– and –
ENZO DE JESUS CARRASCO
REASONS FOR DECISION
DAMBROT J.
RELEASED: December 12, 2019
[^1]: I note that as of the date of the release of this ruling, the accused have been convicted of some of the offences in the indictment. However, this ruling was made, and the reasons largely written, before Dr. Sampsel testified at trial.
[^2]: I note that the decisions in Wilson and P.N.W. were given at different stages of the same case and relate to evidence also given by Dr. Sampsel that was similar to the evidence that the Crown seeks to adduce here. I rely, of course, on the principles described by Hackland J. in Wilson and P.N.W., and not his factual determination about the qualifications of Dr. Sampsel.
[^3]: I note that for several reasons, the issue about the possible ingestion of ketamine became a virtual non-issue as the trial progressed. Most importantly, Ms. Wallage, the toxicologist who was responsible for analyzing blood and urine samples taken from the complainant at a hospital the day of the alleged offences, reported that the complainant still had in her system three anti-seizure drugs that the complainant took to control her epilepsy, as well as cocaine, alcohol, and oxazepam. All but cocaine are central nervous system depressants which cumulatively could have accounted for her memory loss. In addition, in the end, Crown counsel restricted his allegation on the administering a stupefying substance count to the administering of alcohol and cocaine, and in my charge I limited the jury’s consideration to those two substances.
[^4]: I note that there are advantages to applying her clinical approach to a video as well. She is able to observe the complainant over a lengthy period of time performing a variety of tasks without the complainant knowing that she is being evaluated.
[^5]: 280 since November 2017.