R. v. J.P.B., C.G.B., S.J.A., C.L., and W.J.V.

COURT FILE NO.: 4685/19

DATE: 20210114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. J.P.B., C.G.B., S.J.A., C.L., and W.J.V.

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: P. Vadacchino and C. Lapointe, Counsel, for the Crown, Applicant S. Buchanan, Counsel, for J.P.B., Respondent M. Peterson, Counsel, for C.G.B., Respondent B. Simpson, Counsel, for S.J.A., Respondent E. Gok, Counsel, for C.L., Respondent D. Protomanni, Counsel, for W.J.V., Respondent

HEARD: January 8, 2021, by Zoom Teleconference

decision on admissibility of lay opinion evidence

[1] The Crown seeks a ruling on the admissibility of proposed lay opinion evidence to be offered by Ms. Lisa Phelps, R.N. A voir dire was held for that purpose.

[2] Ms. Phelps has been designated as a capacity assessor by the Ministry of the Attorney General pursuant to the regulations under the Substitute Decisions Act, 1992 (the “SDA”).

[3] An affidavit dated June 12, 2020 was sworn by Ms. Phelps and filed (Exhibit A). The affidavit was accompanied by her curriculum vitae (Exhibit E). Ms. Phelps testified in chief at the voir dire and was cross-examined.

Background:

[4] The co-accused in this case are alleged to have committed a variety of offences, mainly of a sexual nature, involving a total of 10 complainants. Amongst them, they face about five dozen individual counts.

[5] One of the complainants is C.B. a daughter of the accused J.P.B. All five of the accused are alleged to have committed offences involving C.B. as a victim. At the relevant times, she is said to have been incapable of giving consent to sexual activity by virtue of intellectual and developmental delays and addiction to alcohol and drugs. For the accused other than J.P.B., honest but mistaken belief in consent appears to be an available defence.

[6] In October 2017, Community Living/Port Cares undertook a process to find a secure and safe place for C.B. to live. It hired Ms. Phelps to assess C.B. as to her ability to care for herself independently. Ms. Phelps met with C.B. and reviewed background information provided by representatives of Port Cares. She then prepared an Assessment Report, Form C (the “Report”) under the SDA dated October 18, 2017 (Exhibit B).

Litigation history:

[7] Although the Crown initially did not intend to qualify Lisa Phelps as an expert, it made an application to do so dated June 12, 2020 following a case management conference with Justice H. S. Arrell on April 3, 2020. Responding materials were filed in which the proposed designation of Ms. Phelps as an expert was challenged.

[8] Following a further case management conference before me on November 2, 2020, the Crown revised its application to seek the present ruling on admissibility of lay opinion evidence. Responses were received from counsel for J.P.B., C.G.B., and C.L.

Position of the Crown:

[9] The Crown proposes to rely on the evidence of Ms. Phelps as an indication of C.B.’s condition in October 2017 and in part to explain C.B.’s apprehension under the Mental Health Act on December 16, 2017 by a member of the Niagara Regional Police Service. Ms. Phelps will give her opinions as to C.B.’s capacity to manage her personal care including health care, nutrition, shelter and safety. Those opinions are contained in the Report.

[10] According to the Crown, Ms. Phelps’ opinions are needed to the extent that the Report has informed the view Dr. Janice Van Kampen who has been qualified to give evidence as an expert in the field of psychiatry. It is expected that she will testify to C.B.’s capacity to consent to sexual activity.

[11] The Crown submits that the lay opinion evidence of Ms. Phelps is admissible according to the principles established by the Supreme Court of Canada in R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819.

Positions of the Accused:

[12] On behalf of J.P.B., it is submitted that the proposed lay opinion evidence is not relevant. Capacity to consent to sexual activity, which may be informed by the opinion of Ms. Phelps, is not a triable issue for J.P.B. Since Ms. Phelps relied in part on second-hand background information in providing her opinions, those opinions may be unreliable.

[13] Counsel for C.G.B. submits that the opinion evidence of Ms. Phelps, if allowed, could be given more weight by the jury than would be appropriate for a non-expert, despite any limiting instruction.

[14] From the perspective of C.L., an opinion about capacity to make decisions concerning personal care shortly before C.B.’s apprehension has no bearing on the outstanding issues in the trial and are therefore irrelevant. Owing to the short period of contact by Ms. Phelps with C.B. and the time that has passed since that contact, counsel queries the reliability of her anticipated evidence. Counsel further asserts that even the observations made by Ms. Phelps are unduly prejudicial and are unnecessary given the anticipated evidence from civilian witnesses.

Analysis and Conclusion:

[15] Clearly Ms. Phelps may testify at trial to provide direct evidence of her meeting with C.B. on October 16, 2017 including her observations and details of their interaction. That evidence is relevant to C.B.’s condition at the time which is part of a continuum of evidence that will be offered detailing her victimization over a long period of time.

[16] The leading case about non-expert opinion evidence is Graat. That matter involved the opinion evidence of police officers as to their view of whether the accused’s ability to drive had been impaired by alcohol. Justice Dickson (as he then was) focused in part on whether the lay opinion evidence was helpful to the trier of fact. He observed, at page 836:

The judge in the instant case was not in as good a position as the police officers or Mr. Wilson to determine the degree of Mr. Graat’s impairment or his ability to drive a motor vehicle. The witnesses had an opportunity for personal observation. They were in a position to give the court real help. They were not settling the dispute. They were not deciding the matter the court had to decide, the ultimate issue. The judge could accept all or part or none of their evidence.

[17] Focusing on the issue of evidence of impairment, Dickson J. found it illogical to allow the non-expert police officer to give his opinion of the driver’s observed condition and then deny him the right to state an opinion on the consequences of that condition so far as driving was concerned. In this case, the parallel is to admitting Ms. Phelps’ evidence about her observations of C.B.’s condition without permitting her to testify about the consequences of those observations on C.B.’s personal care decision-making ability.

[18] The court in Graat also made it clear that the weight to be given to the evidence offered by non-experts is entirely a matter for the trier of fact. In a jury case, such as this one, a limiting instruction is called for to neutralize any tendency on the part of the jury to give the lay opinion evidence any special weight beyond that of any other fact witnesses.

[19] Other policy considerations were identified in Graat that could lead to lay opinion evidence being deemed inadmissible. Justice Dickson referred to the dangers of confusing the issues or misleading the jury, unfair surprise, and undue consumption of time. In this case, I consider there to be minimal potential for the opinion evidence of Ms. Phelps to confuse the issues. There is no surprise at all. Ms. Phelps will be testifying as to her observations in any event and the additional time required to provide her opinions will be minimal in the context of the lengthy trial. As to the potential for the lay opinion evidence to mislead the jury, I refer to the comment of Dickson J. in Graat as to the jury’s role to ascribe such weight as it sees fit.

[20] Based on the evidence given by Ms. Phelps, including her affidavit and the cross-examinations, and her curriculum vitae, she is a qualified capacity assessor. Her professional experience as a registered nurse includes work in long-term care facilities where she has dealt with individuals who have complex medical and psychiatric conditions and who could not live in community on their own. Her experiences in hospital intensive care units, labour and delivery units, and maternal child unit/surgical case rooms has brought her into contact with individuals reacting to emotional stress and intense and prolonged pain. Even though the last seven years of her work has been mainly in management of long-term care facilities, she has secured and maintained her designation as a capacity assessor from December 9, 2016. She is one of two capacity assessors in the Niagara Region designated as such by the Ministry of the Attorney General. Her training and qualifications as a capacity assessor allow her to determine if an individual can make personal care decisions under the SDA. Any challenge to Ms. Phelps’ qualifications can be explored in cross-examination at trial.

[21] I am satisfied that the opinion evidence proposed to be offered by Ms. Phelps is relevant to the case for the reasons identified by the Crown. It deals with the capacity of C.B. to manage aspects of her personal care. It also forms part of the factual matrix relied on by Dr. Van Kampen in her opinion as to C.B.’s capacity to consent to sexual activity.

[22] The proposed opinion evidence will be helpful to the jury since the jurors were not present to observe C.B. in October 2017 and since the jury lacks the knowledge of a capacity assessor to interpret C.B.’s behavior. Because the opinion evidence does not speak directly to the live issue of capacity to consent to sexual activity, it leaves that matter to the jury, but with information that the jury may weigh together with all available evidence on that subject including the strength of the expert opinions. As with Ms. Phelps’ qualifications, any issue about the reliability of the lay opinion evidence can be explored in cross-examination.

[23] Because this is a joint trial, it is of no consequence that capacity to consent to sexual relations does not relate to J.P.B. equally with the other accused. In addition, since J.P.B. faces a charge of receiving material benefits from sexual services contrary to s. 286.2 of the Criminal Code, and since an available defence is that the actions of C.B. were voluntary, her capacity to consent may well be a live issue as regards J.P.B.

[24] The fact that Ms. Phelps will not be qualified as an expert diminishes rather than increases the risk that the jury will place undue weight on her evidence. That risk is dealt with routinely when juries are given mid-trial and final instructions about expert evidence. In this case, an appropriate mid-trial and final instruction will be given as to the appropriate use that can be made of non-expert opinions.

Summary:

[25] For the foregoing reasons, the Crown may lead lay opinion evidence at trial from Lisa Phelps, R.N.

[26] There will be a mid-trial and a final instruction as to the permitted use of lay opinion evidence by the jury.

Reid J.

Date: January 14, 2021