COURT FILE NO.: CR-19-10000463

DATE: 2021-08-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

JACOB HOGGARD

Jill Witkin and Kelly Slate, for the Crown

Megan Savard and James Foy, for the accused

HEARD: April 28, and June 28 and 29, 2021

PUBLICATION BAN

There is a publication ban under s.648 of the Criminal Code in relation to any portion of the trial where the jury is not present. There is also a publication ban under s.486.4 in relation to any information that could identify a witness. Finally, the publication ban under s.539 on evidence from the preliminary inquiry remains in effect.

G. ROBERTS J.:

[1] Jacob Hoggard stands charged, on a single indictment, with sexual assault causing bodily harm to two different young women, MB and JB, in the fall of 2016. He is also charged with sexual interference of MB the previous spring, when MB was 15 years old. Mr. Hoggard's trial was originally scheduled to begin in January of 2021. Due to the inability to hold jury trials during portions of the COVID-19 pandemic, the trial is now scheduled to begin in January 2022.

[2] I decided an application for severance last summer, which I dismissed for written reasons 2020 ONSC 5588.

[3] This is my decision regarding the remaining pre-trial applications.

[4] As noted in my ruling on the severance application, I was appointed as the case-management judge pursuant to s.555.1 of the Criminal Code.

Challenge for Cause

[5] The defence seeks to challenge prospective jurors for cause based on publicity pursuant to s.638 of the Criminal Code. The Crown agrees both that such a challenge is appropriate in this case, and that the questions proposed by defence counsel are appropriate. The Crown would simply add more information to the preamble to the questions, expanding it to include mention of Mr. Hoggard's band Hedley, in light of the fact that much of the pre-trial publicity focused on the band generally. Defence counsel agrees with this addition, as do I.

[6] It is accepted that Jacob Hoggard is a well-known Canadian singer and songwriter, best known as the lead singer of the pop-rock band Hedley. He was charged with the offences at issue in this case in July 2018, a time when the #MeToo movement had led to an increase in public discussion about sexual misconduct, especially by male public figures.

[7] It is also accepted that the charges in this case have attracted considerable media attention. Defence counsel provided a sample of the media attention, including the following:

• an article prior to charges being laid linking allegations against Mr. Hoggard to the #MeToo movement (April 11, 2018 in Now by Carla Gillis); an article from the Globe and Mail, dated March 19, 2018 by Debra Soh, titled "What we can learn from Hoggard's #MeToo demise #outHedley2k18";
• an article prior to charges being laid titled "Hedley hammered as social media accusers take aim at music industry" (February 17, 2018 in Vancouver Sun by Randy Shon);
• online commentary preceding the charges about allegations that Hedley drugged an underage concertgoer (February 15, 2018 in exlaim.ca by Josiah Hughes);
• samples of online and print commentary after charges were laid, including an article by the late Christie Blatchford in the National Post, dated July 26, 2018, titled "Except for in court, Hedley front man has already been found guilty"; and another article from Narcity, dated July 23, 2018, by Kailie Annetts titled "Jacob Hoggard was finally arrested on sexual assault charges and twitter's ripping him apart";
• JB, one of the complainants in this case, provided an account of her allegations to the CBC, which was posted on-line February 25, 2018, by Judy Trinh;
• commentary on Twitter about the charges, including the fact that the Sex Crimes unit of the Toronto Police Service released Mr. Hoggard's photograph, noting "Police concerned there may be other victims. If you believe you are or may be a victim contact Toronto Police Sex Crimes…". Defence counsel notes that as of mid-December 2020, that tweet had been re-tweeted almost 500 times.

[8] Counsel agree that a series of questions, based on the questions approved in R. v. Ahmad, 2010 ONSC 256, are appropriate in this case. The questions are tailored to focus on whether partiality exists due to publicity, and whether it can be set aside: the attitudinal and behavioural components of partiality discussed in R. v. Parks (1993), 1993 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont.C.A.) at pp.364-65, and R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.) at para.32. The questions can be asked efficiently and with minimal intrusion into juror privacy and I agree with counsel that they are appropriate in this case. I also agree, as noted, that the preamble should be expanded to include mention of the band Hedley in order to alert potential jurors of Mr. Hoggard's connection to the band Hedley, given that much of the publicity focused on the band and its "lead singer". Expanding the preamble in this way will ensure that the questions capture a potential juror who is aware of media attention surrounding the band Hedley, and its lead singer, but unaware of the name Jacob Hoggard.

[9] As a result, the following challenge for cause will be permitted in this case:

Preamble:

Jacob Hoggard is a Canadian singer and songwriter, best known as the lead singer of the pop-rock band Hedley. Jacob Hoggard is charged with sexual offences.

Questions:

a. Have you seen, heard or read anything about this case, or any sexual misconduct by Mr. Hoggard, anywhere - for example, the Internet, television, radio, newspapers or magazines?

b. Have you talked about this case, or any sexual misconduct by Mr. Hoggard, with anyone?

c. Have you heard anyone talk about this case, or any sexual misconduct by Mr. Hoggard?

d. (If applicable) Would you describe your memory of what you have said, seen, heard or read as strong, fair or poor?

e. (If applicable) As a result of anything you have said, seen, heard or read, have you formed an opinion about the guilt or innocence of the accused?

f. (If applicable) Would you describe this opinion as strong?

g. (If applicable) Despite any opinion you may have formed, would you be able to set that opinion aside and decide the case based only on the evidence at trial and the instructions of the trial judge?

[10] We can confirm the wording of the challenge for cause prior to jury selection in the event any changes, additions or deletions are required.

Admissibility of evidence of Cris Crippen

[11] Cris Crippen is the former drummer of Hedley. He met Jacob Hoggard in late 2004. Mr. Hoggard had recently finished competing on Canadian Idol and his manager wanted to rebrand Hedley with new, more professional and skilled band members. Cris Crippen joined the band as drummer. Over time Crippen had contract and personality difficulties with the band and with Mr. Hoggard in particular.

[12] In October of 2018, after the charges in this case were laid, Mr. Crippen provided a detailed statement to police about his experience being a member of Hedley in general and with Mr. Hoggard in particular. He described being picked on and treated badly by Mr. Hoggard over approximately 10 years. In April of 2016 he left a tour and was fired. He has remained on bad terms with Mr. Hoggard. Mr. Crippen explained to police that "one of the reasons I never wanted to bother coming forward is because I just have nothing nice to say about him." He reiterated this toward the end of the interview: "the reason I didn't think I could help you was that it's obvious that I have nothing nice to say, that I really don't like him. I'm really excited to not have him in my life."

[13] Mr. Crippen noted that the band attracted fans across a wide age group, spanning 6 to 80. He recalled families attending concerts. He also recalled hanging out with whole families after concerts when they played smaller venues like Kirkland Lake. It was common for the band to hand out backstage passes to people they met.

[14] At some point, Mr. Hoggard sent Mr. Crippen a video of himself masturbating on an airplane. Mr. Crippen kept the video and eventually provided it to police.

[15] Mr. Crippen described Mr. Hoggard sharing details of sexual encounters which involved Mr. Hoggard engaging in anal sex followed by fellatio, and bragging about his sexual partner having "poop in her mouth". After hearing Mr. Hoggard refer on a couple of occasions to his sexual partner having "poop in her mouth", Mr. Crippen had the following conversation with Mr. Hoggard:

[Y]ou did that again? He's like yeah. I'm like what is this thing? Is it degradation? He goes yeah I'm into degradation. I'm like okay….

I said okay that's the thing, you like to make them feel bad? Yeah. I said is this like from high school or something? You got jilted in high school? He's like, yeah, yeah.

[16] The women involved were not underage, and there was no suggestion any of the sexual activity was non-consensual.

[17] The Crown seeks to tender only parts of Mr. Crippen's statement, namely:

a) Cris Crippin was the drummer for Hedley from 2004 through to 2016. During that time frame he travelled with the band on tour. He left a tour in April 2016 and was fired from the band and replaced.

b) During a tour it was not unusual for fans to be provided backstage passes, tickets for shows, and meet and greets with members of the band. It was not unusual for the band to meet with fans in a parking lot after a show and for backstage passes to be provided for a subsequent show.

c) Mr. Hoggard sent Cris Crippin a video of himself masturbating on an airplane. Cris Crippen kept the video. He provided it to police.

d) Mr. Hoggard told Cris Crippin when discussing sexual activities with women that he was 'into degradation'.

[18] To provide some additional context relating to c), both complainants told police that Mr. Hoggard sent each of them a video of himself masturbating, specifically:

• JB noted that the video was set in an airplane. Mr. Hoggard sent it by text, and she kept it, though lost it when her cell phone was stolen. Police showed JB the video that Cris Crippen received from Mr. Hoggard, and she identified it as the same one that Mr. Hoggard sent to her.
• MB noted that the video was set in a bathroom. Initially it showed Mr. Hoggard's face, and then panned down and showed him masturbating. Police showed MB the video Cris Crippen received from Mr. Hoggard, and she indicated that it was not the same one that Mr. Hoggard sent to her.

[19] The Crown argues that there can be no issue that a) and b) are admissible. The Crown takes the position that c) and d) do not reflect extrinsic misconduct or bad character and thus are presumptively admissible. In the alternative, the probative value of both pieces of evidence exceeds its prejudicial effect and should be admitted at trial.

[20] The defence agrees that a) and b) are admissible, though observes that this evidence is so uncontroversial it may be the subject of an agreed statement of facts. The defence asserts that c) and d) reflect extrinsic misconduct. With respect to c), the defence indicates that they are prepared to agree that a video exists of Mr. Hoggard masturbating, and that the Crown obtained this video from a source other than the complainants. The defence is not prepared to concede that Mr. Hoggard sent videos of himself masturbating to each complainant. In light of this admission, the prejudicial effect of c) is greater than its probative value. This is manifestly true of d), which is highly prejudicial.

[21] After the application was argued, counsel reached the following agreed statement of fact regarding the content of the masturbation video:

The video is 6 seconds in length and depicts Jacob Hoggard from the hips up. He is seated, wearing a white t-shirt and a black undone zippered jacket. No pants or underwear are visible in the video. He looks to be in a sterile environment, consistent with an airplane bathroom. No one else is seen on the video. The video has audio but Mr. Hoggard does not say anything. There is muffled loud sound throughout the video similar to the sound inside an airplane. The video commences with a view of Mr. Hoggard from the chest up. He is looking at the camera and appears to be chewing gum. At times, part of his left arm is visible on the screen in a manner that suggests he is filing himself, 'selfie-style'. After two seconds the camera angle pans downwards and Mr. Hoggard's semi-erect penis is seen. His right hand is at the base of his penis and is moving his penis back and forth. The video ends at this point.

[22] In addition, defence counsel is prepared to admit that "The police obtained a copy of the video in the course of their investigation".

The test for the admission of evidence of extrinsic misconduct

[23] The framework for analyzing evidence of extrinsic misconduct is well-established. It was recently reiterated by the Court of Appeal in R. v. JMZ, 2021 ONCA 116. Evidence amounting to extrinsic misconduct is presumptively inadmissible unless the Crown can show both that it is relevant to a material issue, and its probative value exceeds its potential for prejudice, both moral prejudice and reasoning prejudice.

[24] The potential probative value of the evidence must be assessed, including the strength of the evidence that the accused performed the extrinsic misconduct; the extent to which the evidence supports the inferences the Crown seeks to draw (the "connectedness" between the evidence of extrinsic misconduct and the issues it relates to); and the materiality of the evidence - the extent to which the inferences tend to prove matters at issue in the trial, which must take into consideration relevant defence admissions: ZWC, para.98.

[25] The potential for prejudice, both moral and reasoning, must also be carefully assessed. Moral prejudice encompasses the danger of general propensity reasoning (the accused is the kind of person to commit the particular offence), the danger that an accused may be punished because of who he is (generally a bad person) and not what he has done. Reasoning prejudice involves the danger that the jury may be confused, unduly distracted, and/or inflamed. It also considers whether the issue would consume an undue amount of time and effort in the trial process, and/or the risk that the evidence could be given more weight than is logically justified in the circumstances. Finally, reasoning prejudice also considers the extent to which the accused can respond to the extrinsic evidence: ZWC, paras.102-103.

Analysis

[26] There is no issue that Cris Crippen can testify about a) and b). It falls within the discretion of the Crown how to lead this evidence, though I not that, based on the circumstances before me, it appears well-suited to an agreed statement of facts.

[27] A preliminary issue with c) and d) is whether the evidence amounts to extrinsic misconduct. Evidence is discreditable when it tends to show conduct of the accused, beyond what is alleged in the indictment (or in a count), that an ordinary person would view with disapproval: R. v. Bos, 2016 ONCA 443 at paras.72-73; R. v. Johnson, 2010 ONCA 646 (Ont. C.A.) at para. 90. Such evidence is presumptively inadmissible because "[i]ts potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value": R. v. Handy, 2002 SCC 56 at para. 37. In considering whether evidence amounts to discreditable conduct in R. v. L.B. (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont.C.A.) at paras. 20-22, Justice Charron, as she then was, cut to the essence of the concern: does the proposed evidence pose a danger of being mis-used by the trier of fact?

[28] I think the answer to Justice Charron's question with respect to both c) and d) is yes, particularly when the evidence is considered in context. Cris Crippen's evidence about the masturbation video is not simply that Mr. Hoggard made such a video and sent it to him, but that Mr. Hoggard sent it to Mr. Crippen knowing Mr. Crippen would not want to see it. Similarly, when d) is considered in context, it is manifestly, if not overwhelmingly, discreditable. To be fair, the Crown does not suggest otherwise. Rather, the Crown’s submission is that it can be sanitized, and when this is done, the probative value exceeds prejudice. But even sanitized, the evidence poses a danger of being mis-used by the trier of fact.

[29] Beginning with c), the masturbation video, the defence admits that a video of Mr. Hoggard masturbating exists (as described above). In addition, the defence is prepared to admit that the police obtained a copy of the video in the course of their investigation.

[30] The defence position removes the potential relevance of Cris Crippen’s evidence as providing support for the complainant’s evidence that Mr. Hoggard video-taped himself masturbating. The defence admits that such a video exists. The remaining relevance is to support the credibility of both complainants that Mr. Hoggard sent each of them a video of himself masturbating.

[31] In R. v. Handy, 2002 SCC 56, Justice Binnie, for a unanimous Supreme Court, noted that credibility is an extremely broad issue - it "pervades most trials, and at is [its] broadest may amount to a decision on guilt or innocence" (para.115). Justice Binnie went on to caution that credibility alone will rarely imbue evidence of extrinsic misconduct with significant probative value; it risks admitting evidence "of nothing more than general disposition ('bad personhood')" (para.116).

[32] In this case, defence counsel point out that the probative value of Cris Crippen's evidence is further diminished by the fact that he received the masturbation video in a very different context than MB and JB. Cris Crippen received the video as a joke; a form of locker room humour. MB and JB received the video as part of a process of grooming or electronic flirting through sending increasingly explicit electronic communication about sex. In addition, Cris Crippen did not consent to receiving the video and did not appreciate receiving it. Defence counsel suggests that this could give rise to the inference that Mr. Hoggard was prepared to impose his sexuality on others, regardless of their wishes.

[33] In light of the defence admissions, I do not believe the masturbation video has significant probative value.

[34] At the same time, the prejudicial effect, while perhaps not huge, is significant. In terms of moral prejudice, if the jury were to conclude that Mr. Hoggard knew that Cris Crippen would not want to receive the video, the fact that Mr. Hoggard sent it anyway casts Mr. Hoggard in a bad light. In particular, it gives rise to a risk of impermissible general propensity reasoning, specifically that Mr. Hoggard is the kind of person prepared to inflict his sexuality on others, regardless of their wishes.

[35] The evidence also poses reasoning prejudice. The jury will have to consider the long and complicated history of Cris Crippen's relationship with Mr. Hoggard and sort out what happened, and with what intention. This is a significant distraction in an already difficult trial, especially when it will yield very little if anything that will help the jury assess the real issues in the case.

[36] Considering all the circumstances currently before me, including the defence admissions, I conclude that the probative value of Cris Crippen's evidence that Mr. Hoggard sent him a video of himself masturbating is outweighed by the risk of prejudice that it poses. It is not admissible.

[37] Turning to d), Cris Crippen's evidence that Mr. Hoggard admitted to being into "degradation", this is a statement against interest by an opposing party, and is presumptively admissible. However, it also reflects extrinsic misconduct. In R. v. Skeete, 2017 ONCA 926 at para.150, Justice Watt notes that a statement against interest is subject to the discretion of the trial judge to exclude evidence which would cause an unfair trial. In addition, it is well-established that a trial judge has the discretion to exclude relevant and material evidence where the probative value of the evidence is exceeded by its potential for prejudice to the accused and the trial process.

[38] The statement is problematic apart from its content. It reflects only a small part of the alleged communications between Cris Crippen and Mr. Hoggard that gave rise to the statement. The Crown fairly acknowledges that those other discussions are too prejudicial to be admissible. But without them, it is hard to understand what the degradation comment means. It will be even harder for the defence to challenge Mr. Crippen without the risk of eliciting extremely prejudicial information - taking Crippen's evidence at its highest, the intended meaning is enormously prejudicial.

[39] It is the Crown’s position that the comment is relevant and material to support the credibility of both complainants, each of whom testified about being subjected to particularly degrading acts, including Mr. Hoggard spitting into their mouths, and forcibly penetrating their anus, with his fingers or penis, and then forcing his fingers or penis, whichever had been inside their anus, into their mouths. Both complainants also describe their sexual activity with Mr. Hoggard as non-consensual, which strikes me as inherently degrading.

[40] The probative value of the statement is limited in so far as it is only relevant to credibility. While I recognize that the statement is not simply extrinsic misconduct, it bears repeating that credibility is not generally a sufficient basis to merit the admission of evidence of extrinsic evidence. Here the probative value is further limited by how general the comment is. Without context, it is hard to know what the comment even means.

[41] At the same time, the potential moral reasoning prejudice of this evidence is enormous, even sanitized in the manner the Crown proposes. While Cris Crippen is clear that there was never a suggestion that any of the sexual acts Mr. Hoggard described were non-consensual, being "into degradation" in the context of sexual activity may manifest in many ways, including in relation to the nature of the sexual acts, their sequence, where and how they occur, and whether they are consensual. The absence of any specificity around what Mr. Hoggard meant in agreeing to the suggestion that he was into "degradation", intended to sanitize the evidence, instead opens a host of possible meanings, from bad to worse. The statement gives rise to a real risk of general propensity reasoning - the accused is more likely to have committed sexual assault because he likes to degrade women. It also gives rise to the more general risk that the jury will conclude he is simply a bad person, deserving of punishment.

[42] The evidence will also bring significant reasoning prejudice. It will be difficult and time-consuming to lead and challenge, distracting, and, ultimately, I do not think it can be fairly assessed in the circumstances of the case. Taking Cris Crippen's evidence at its highest, he led Mr. Hoggard into making the degradation comment - Mr. Hoggard accepted Cris Crippen's suggestion that Mr. Hoggard was into degradation. What Mr. Hoggard intended in agreeing to this suggestion must be carefully assessed. This is not easy at the best of times and here it is complicated by the fact that Cris Crippen had (and still has) significant animosity toward Mr. Hoggard. In addition, defence counsel must undertake this difficult task without opening the door to even more prejudicial evidence from Cris Crippen, evidence the Crown concedes is manifestly too prejudicial to merit admission. The assessment of prejudice properly involves consideration of whether the evidence can be properly tested: Skeete, at para.155. I do not think it can be here.

[43] In the circumstances currently before me, the probative value of the evidence that Mr. Hoggard was into degradation is vague and problematic. Its potential for prejudice is clear and significant. The evidence is not admissible.

Admissibility of evidence from JMB about prior sexual urination

[44] The Crown seeks a ruling permitting it to call evidence from JMB that Mr. Hoggard asked her to urinate on him in the course of sexual activity. JMB had a consensual sexual relationship with Mr. Hoggard over the course of about 8 months in 2013-14 in Vancouver when JMB was 22 or 23. JMB contacted police in July 2018 when news reports began to emerge about Mr. Hoggard because she was angry about how Mr. Hoggard treated her; he hurt her feelings on multiple occasions and made her feel like she was not important and had no value to him. During their relationship, JMB thought Mr. Hoggard loved her, and they might have a future together. In hindsight, she described their relationship as "friends with benefits". JMB read news articles about Mr. Hoggard, but she did not read the interview JB gave to the CBC, nor is there any evidence that she read anything about Mr. Hoggard forcing or attempting to force urination during sexual activity.

[45] JMB met Mr. Hoggard at a club in Vancouver in October or November of 2013 following a We Day celebration where Hedley performed. They went out for dinner later the same week, and then began seeing each other a couple of times a month. After the first few times they went out, they began a sexual relationship. JMB described Mr. Hoggard as controlling and rough in the context of their sexual relationship. He would direct what he wanted to happen, and often film portions of it. He was rough in the sense that he would hold her face and kiss her and push her to the ground. She felt like an object. She never felt pain or discomfort afterwards. JMB stopped seeing Mr. Hoggard when she realized he had a girlfriend, and that he had given her chlamydia.

[46] JMB was unequivocal that all her sexual encounters with Mr. Hoggard were consensual, but explained to police that Mr. Hoggard made her feel uncomfortable sexually on many occasions. She recounted one occasion in February or March of 2014 after they went out for dinner. As they were leaving the restaurant, JMB said she was going to use the washroom. Mr. Hoggard directed her to wait until they got home because he had an idea. She drove the couple of blocks back to Mr. Hoggard's apartment while he ran beside the car. Once inside the apartment, they went straight into the bathroom. Mr. Hoggard started to take off his clothes and directed her to do the same. He told her that he was going to get her to pee on him, and it would be awesome. Mr. Hoggard got into the bathtub. He directed JMB to straddle his face and urinate on his face. She reluctantly complied because he seemed so excited. Mr. Hoggard seemed to really enjoy it. They showered and then had "really strong like fast sex" afterwards.

[47] The Crown seeks to tender JMB's evidence about Mr. Hoggard asking her to urinate on him in the context of their sexual relationship in order to support the credibility of JB, who testified that her sexual interaction with Mr. Hoggard included him directing her to urinate on him, and then threatening to urinate on her. In particular, the Crown seeks to tender the evidence in order to protect JB from a suggestion by counsel, or a concern from the jury, that her evidence about urination is implausible, casting doubt on her entire account. The Crown asserts that JMB's evidence about sexual urination is not discreditable conduct and is thus presumptively admissible. In the alternative, if it is discreditable, it is admissible as similar fact evidence. The Crown asserts that JMB's evidence reveals such a specific propensity (a unique sexual fetish to be aroused by being urinated out) that it is improbable there is a coincidence, and the probative value of JMB's evidence is therefore high.

[48] The defence resists the admission of JMB's evidence, asserting it is discreditable because there is a very significant risk that it could be mis-used by the jury. Specifically, the jury could conclude that being sexually aroused by being urinated on is deviant behaviour. Because Mr. Hoggard is "into" it, he may be "into" other deviant behaviour like sexual assault. The evidence is therefore presumptively inadmissible and can only become admissible if the Crown establishes that it has significant probative value which exceeds its prejudicial effect. Defence counsel asserts that the similar fact rubric shows that the probative value of the evidence is not high because it occurs in an entirely different context than described by JB. JMB describes Mr. Hoggard asking her to urinate on him in the context of a consensual and relatively long-term sexual relationship. JB describes urination in the context of non-consensual sex, specifically Mr. Hoggard directing her to urinate on him and then threatening to urinate on her. In addition, defence counsel undertakes not to make any suggestion to JB that her evidence about urination as part of the sexual conduct she described is implausible. Defence counsel also notes that the jury can be instructed that urination in the course of sexual activity is not inherently implausible.

Law

[49] Similar fact evidence is a particular form of evidence of extrinsic misconduct (extrinsic to the count not necessarily the trial). The test for the admission of similar fact evidence is essentially a way of assessing the probative value of evidence of extrinsic misconduct in order to determine whether it exceeds prejudicial effect, and the evidence is admissible at trial. It is well-established that Handy sets out the prevailing test for assessing the probative value of similar fact evidence:

1. What is the fact or issue to which the evidence relates?
2. What chain of reasoning links the evidence and the fact or issue to be proved?
3. Does the reasoning involve general or specific propensity?
4. How strong is the nexus or "connectedness" between the evidence and the fact in issue?
5. Is there an alternate explanation, such as collusion or tainting? (See also R. v. Bent, 2016 ONCA 651.)

[50] In general, similar fact evidence becomes admissible when the propensity it shows is so specific or distinctive as to defy coincidence or other innocent explanation. Without such specificity the danger of improper general propensity reasoning (the accused is the type of person to commit the offence) is too high. Prejudicial effect is considered by assessing whether there is moral and reasoning prejudice, as described above.

Analysis

[51] As a preliminary matter I must decide whether JMB's evidence amounts to discreditable conduct. I do not think it is necessary to try to gauge the reaction of the "ordinary person" to urination in the course of sexual activity, or what defence counsel describes as "urine play". Based on the clear and practical approach outlined in L.B. (set out above), I agree with defence counsel that JMB's evidence that Mr. Hoggard wanted her to urinate on him in the course of their consensual sexual activity poses a risk of being mis-used by the trier of fact. Specifically, it poses a risk of being misused as evidence of a general propensity to engage in deviant sexual conduct. As a result, I agree with the defence that it falls within the category of extrinsic misconduct and is presumptively inadmissible.

[52] The first step in analyzing the admissibility of JMB's evidence is to assess its probative value. This begins with an assessment of relevance and materiality. The Crown argues that JMB's evidence shows a habit on the part of Mr. Hoggard, which can support the credibility of a piece of JB's account, namely that Mr. Hoggard wanted JB to urinate on him during their sexual activity. The difficulty with this position is that the urination occurred only once during JMB's sexual relationship with Mr. Hoggard, which extended over a period of months. I do not think one event, particularly one event in the course of a relatively long-term relationship, can provide evidence of a habit. Rather, at its highest, I believe that the evidence reveals a propensity on the part of Mr. Hoggard: he is sexually excited by being urinated on. I accept that this is a fairly specific propensity and, as a matter of logic, is relevant to support JB's evidence that Mr. Hoggard asked her to do the same thing in the course of their sexual encounter. As the Crown put it, urination in the course of sexual activity is a unique act, which both renders JB's evidence more probable, and protects against the jury being suspicious of JB's evidence because urine play is unusual. It is in fact not so unusual for Mr. Hoggard.

[53] However, the materiality of the evidence is limited by the defence assurance that they will not seek to challenge JB's credibility on the basis that her evidence that Mr. Hoggard wanted her to urinate on him is implausible.

[54] The probative value of JMB's evidence is further limited by the fact that the urination occurs in the context of a consensual and relatively long-term sexual relationship. JMB may have felt uncomfortable about urinating on Mr. Hoggard, but she was unequivocal that she consented, and that all their sexual interactions were consensual. Their relationship was also relatively long-term; the sexual urination occurred only once, over 3 years before JB met Mr. Hoggard. In contrast, JB's account involves Mr. Hoggard forcibly dragging her toward the washroom and demanding she urinate on him in the context of non-consensual sexual interactions. When she refused, he threatened to urinate on her. I agree with defence counsel that it does not follow that someone who engages in consensual sexual urination is more likely to engage in non-consensual sexual urination: R. v. Strong, 2020 ONSC 7580 at para74; R. v. Taylor (1982), 1982 2160 (ON CA), 66 C.C.C. (2d) 437 (Ont.C.A.) at para.11; R. v. H.(J.) (2006), 2006 40664 (ON CA), 215 C.C.C. (3d) 233 (Ont.C.A.) at para.43; R. v. Handy at para.124.

[55] In fairness, the Crown does not suggest that the evidence is relevant to establishing the actus reus of sexual assault. Rather, the Crown submits it shows an unusual propensity on the part of Mr. Hoggard that corroborates a piece of JB's evidence. Defence counsel argues it cannot even do this because JMB's account is about urination in the context of consensual sexual activity; JB described urination in the context of a non-consensual sexual encounter. I do not think it is necessary to resolve this particular debate. It is enough to conclude that, taking JMB's account of sexual urination at its highest for the Crown, it is logically only capable of supporting JB's general credibility.

[56] As noted above, Handy cautions that credibility alone is generally not a sufficiently identified issue to merit the admission of similar fact evidence (paras.115-116). Permitting similar fact evidence which relates only to credibility or reliability generally poses too great a risk of general propensity reasoning.

[57] I do not believe there is a basis to depart from this general prohibition in the circumstances of this case. While urination in the context of sexual activity is unusual and specific, I do not believe it is so unusual or specific as to reveal such a distinct pattern of conduct as to defy coincidence that JMB and JB would be lying or mistaken about it occurring. This is particularly the case where the urination in JMB's account occurs in the course of a consensual long-term relationship, whereas the request for urination in JB's account occurs in the course of a non-consensual one-time encounter; nor is there evidence that urine play is an inherently implausible activity, and thus could cast doubt on the credibility of JB. In any event, as noted, defence counsel undertakes not to suggest that this part of JB's account of what happened is implausible.

[58] At the same time, there is significant moral and reasoning prejudice associated with JMB's evidence. Beginning with moral prejudice, the jury may be tempted to think that someone who takes "unusual sexual pleasure" from being urinated on, may also have other "unusual sexual pleasures", such as forcing unwanted sexual activity.

[59] In addition, there is potential for reasoning prejudice. JMB is not an uncomplicated witness. She could be perceived as a jilted former lover with an axe to grind. The jury will initially have to assess her evidence carefully to decide whether the urination she described happened, and, if so, in what context. Only then could it turn to the task of deciding what if any probative value it has in supporting JB's credibility. The jury will have enough to do in this case without analyzing JMB's evidence.

[60] Finally, I believe the jury can be instructed that urination in the context of sexual activity is not an inherently implausible activity. I would seek the input of counsel as to exactly what this instruction should say, but note that it could caution the jury that JB's account of Mr. Hoggard's request that she urinate on him should not cause them to question the credibility or reliability of her evidence. Equally, it should not cause them to believe that Mr. Hoggard was more likely to commit sexual assault. It is simply an unusual sexual activity. It provides no information about the credibility and reliability of JB's evidence or the credibility or reliability of Mr. Hoggard's evidence, should he testify.

[61] Based on the circumstances currently before me, I conclude that JMB's evidence is not admissible because its probative value is outweighed by its potential prejudice. However, I recognize that this is a highly contextual fact specific assessment. Should the circumstances change, such as by a suggestion that JB's evidence of Mr. Hoggard's desire to be urinated on in the course of sexual activity is implausible, the admissibility of JMB's evidence may need to be re-visited. As noted above, I also intend to seek the input of counsel regarding a jury instruction about the urination in order to protect both Mr. Hoggard and the Crown and from improper reasoning about it.

Admissibility of Expert Evidence about the Neurobiology of Trauma

[62] The Crown seeks to tender expert evidence from Dr. Lori Haskell about the neurobiology of trauma, and the broad spectrum of responses to sexual assault. The Crown does not seek to lead any opinion about how the complainants in this case behaved, but rather wants to educate the jury in order to combat myths or stereotypes, possibly even unconscious, about how a "real" victim of sexual assault would or should behave. The Crown describes the proposed evidence as a "shield" not a "sword". The Crown argues that Dr. Haskell's evidence satisfies the test for the admissibility of expert evidence and should be admitted.

[63] Defence counsel acknowledges that it is essential that sexual assault trials be conducting free of myth and stereotype but argues that Dr. Haskell's proposed testimony does not meet any of the Mohan criteria and brings a significant risk of prejudice, both to the accused and to the trial process. Defence counsel argues that the goal of a fair myth and stereotype-free trial can be accomplished through an instruction to the jury.

[64] Dr. Lori Haskell is a clinical psychologist licensed to practice in Ontario since 2000. She has clinical experience assessing and treating the effects of child abuse and sexual assault. She is also a teacher and trainer, and has educated various groups, including police, Crowns, and judges, about the neurobiology of trauma and how it can inform an understanding of behaviour during and after a sexual assault. She is not a neurobiologist, but has studied the brain and body's response to trauma and applied this knowledge to her work as a therapist and to the teaching she does. Her special knowledge or skill is to apply the well-established science of the neurobiology of trauma to the particular context of trauma caused by sexual assault.

[65] Dr. Haskell has testified as an expert witness in a variety of contexts and understands that her duty is to the court. She also appreciates that if permitted to testify, she must stay within the bounds of her expertise and the court's ruling about admissibility.

[66] Dr. Haskell provided the Crown with a written report, dated May 22, 2020 (as noted above the trial was delayed due to COVID-19 and to the inability to conduct a jury trial for significant periods of time), "on the neurobiological and behavioural responses to sexual assault". She did not review any of the disclosure in this case, and has no knowledge of the particulars of the case. Her report draws on research combined with her own experience working with victims of sexual assault and "identifies, outlines and explains diversity and commonalities in victim responses to sexual assault." She also testified before me on an admissibility voir dire. She was thoroughly and skillfully cross-examined, including on the following topics:

• Whether she has ever been qualified to testify as an expert, and if so, in what context and about what. She has never been qualified to testify about the impact of the neurobiology of trauma on the behaviour of sexual assault survivors during or after an alleged sexual assault.
• Her training: she is not trained as a neurobiologist and does not publish in the field; rather she is a therapist and an educator. Her particular niche is that she has studied the neurobiology of trauma extensively, and takes findings from that field and applies them in her work as a therapist, educator, and advocate on behalf of reforming the criminal justice system to make it more sensitive and responsive to survivors of sexual assault.
• Her qualifications: her CV indicates that she has a "status" appointment as an assistant professor in the department of psychiatry at the University of Toronto; that is incorrect. This appointment ended on June 30, 2016. Unfortunately, Dr. Haskell was unaware that the designation was time limited, and the designation remained on her resume notwithstanding that it had expired.
• The portions of her report which involve aspects of neurobiology where there is some controversy.
• The portions of her report which involve applying principles drawn from the field of neurobiology to her experience working with sexual assault survivors, i.e. links between neurobiology and the context of sexual assault, including:
  • Many women's conditioned responses and behaviours to threat and fear, including in relation to sexual assault, are shaped by gender norms and implicitly learned habits, such as avoidance and appeasement.
  • Where the source of threat or danger is someone known, even admired or idolized, the experience is not only alarming and threatening but also simultaneously profoundly confusing and destabilizing.

[67] When the portions of Dr. Haskell's report falling into these last two categories are removed, what is left in the report includes the following (I subsequently refer to this as Dr. Haskell's "pared down" opinion):

• When faced with danger or threat, the brain's defense (or fear) circuitry is automatically activated. It engages reflexive physical reactions, including fight, flight or freeze responses, and automatic physiological responses, such as releasing stress hormones into the brain and body. The defence circuitry is deep in the brain, disconnected from conscious awareness or language and operates largely unconsciously. Once activated, it dominates brain function.
• When the brain's defence circuitry is activated we react automatically. These reflexive reactions include the well-known fight, flight, or freeze responses. It is a misconception to think that people make a wholly calculated or rational assessment when they are in a moment of threat or terror about what to do - should they "freeze," or should they take "flight" or "fight"? The process is much faster and more automatic than that. It happens almost beneath, or under, our consciousness. Stress tends to promote simple decision-making strategies that depend on ingrained habits, at the expense of more thoughtful, goal-directed actions.
• When the brain's defence circuitry is activated a cascade of stress hormones are released into the brain and body, including the prefrontal cortex, the brain region that allows people to think rationally. The prefrontal cortex is the center of executive functions in the brain. It is involved in managing complex processes like reason, logic, problem solving, planning and memory. Stress hormones flooding the brain when we are in the face of fear or threat, can cause a rapid and dramatic loss of prefrontal cognitive abilities, limiting our ability to think, plan and reason in the face of threat. This impairs not only planning and decision making but also affects the brain's capacity to organize experience into logical sequences. What this means is that when people are in the midst of a serious threat or assault, brain regions are activated to help them survive the experience, increasing intense responses such as hyperarousal and altered attentional focus, while decreasing activity of brain structures involved in planning and strategizing.
• Sexual assault may be a traumatic experience.
• An extreme survival reflex is dissociation, which describes spacing out, feeling unreal, disconnecting from horrible emotions and sensations.
• Other extreme survival reflexes include tonic immobility (temporary involuntary paralysis in which individuals cannot move or sometimes even speak) and collapsed immobililty (sudden and drastic drop in heart rate and blood pressure to the point of fainting or passing out).

Law

[68] The test for the admission of expert evidence involves two stages. There is an initial (objective) threshold assessment of whether the classic R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.) criteria have been established: relevance, necessity, absence of an exclusionary rule and a properly qualified expert. In addition, the expert must be aware of the duty to the court to give impartial, independent and unbiased opinion evidence, and be able and willing to carry it out. Further, in the case of novel science, or science used for a novel purpose, the reliability of the underlying science for that purpose must also be established. If the threshold criteria are established, the judge then moves to a second (more subjective) analysis, which involves a cost benefit analysis where the judge must weigh the probative value of the evidence against its potential prejudicial effect. This weighing involves a reconsideration of the criteria from step one in the context of the trial process: the value of the evidence, including its reliability and the impartiality of the expert, and how important it is, considered against the risks it will involve, including considerations like the time it will consume, its potential for prejudice and confusion, and the risk that the trier may not be able to effectively and critically assess it. Ultimately the trial judge must be satisfied that the benefits of the proposed evidence exceed the potential risks its poses to the trial process: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23; R. v. Abbey, 2009 ONCA 624.

[69] The application of the test is highly fact specific. It must begin with a clear understanding of the nature and scope of the expert evidence being proposed. The fact that similar evidence may have been admitted, or rejected, in another case, at another time, may be helpful, but is not determinative. Not only is the state of scientific knowledge and expertise fluid, but the understanding of concepts and the corresponding need for help is equally fluid. In addition, the test requires a subjective weighing of probative value and prejudicial effect that is highly specific to the particular circumstances of the case: R. v. A.K. (1999), 1999 3793 (ON CA), 137 C.C.C. (3d) 225 at para.76 per Charron J.A. writing for a unanimous court on this point (including Moldaver J.A. and McMurtry C.J.O.).

Application of the test to the circumstances of this case

[70] I will begin, as defence counsel did, with an assessment of the reliability of the proposed expert evidence. This criterion, at least in the circumstances of this case, lies at the foundation of the analysis.

Reliability

[71] Defence counsel argues that Dr. Haskell's work applying principles of neurobiology to the trauma of sexual assault amounts to "science being applied for a novel purpose", and the Crown has failed to show this work is sufficiently reliable to merit admission as expert evidence. I agree, at least in part.

[72] Dr. Haskell's work involves applying well-established principles or phenomena from the field of neurobiology to the context of sexual assault. She has found it helpful to apply these phenomena in her clinical practice working with people who have suffered trauma. She has also done extensive teaching of justice system participants, for example, helping police to interview, and counsel and judges to understand, a sexual assault complaint in light of the neurobiological phenomena that may have been operative during the alleged sexual assault. This is invaluable work, but I do not think the linkages that Dr. Haskell makes between the neurobiology of trauma and the behaviour of sexual assault survivors are properly the subject of expert evidence, at least at this point in time. I agree with defence counsel that the work of making these links does not meet the criteria set out in Abbey for the legal reliability of expert evidence that is informed by qualitative (as opposed to statistical or scientific) research: Abbey at para.119. The linkages are mostly Dr. Haskell's observations, not a recognized discipline or area of specialized training. Currently, based on the information before me, there is no way to evaluate her observations about the linkages she makes.

[73] At the same time, there is no dispute that the neurobiology of trauma is a well-established scientific field, and there are a number of well-accepted phenomena associated with the brain and body's response to stress and trauma. These well-accepted phenomena, outlined above in italics as the "pared down" portions of Dr. Haskell's report, have been described in peer-reviewed scientific journals, and carefully studied and replicated. They are reliable.

[74] The "pared down" opinion set out above also includes Dr. Haskell's opinion that sexual assault may be a stressful or traumatic event. This is not controversial. The DSM-5 defines trauma as "actual or threatened death, serious injury or sexual violence". Moreover, it is well-accepted in the jurisprudence that sexual assault may be traumatic, as I will explain below when addressing necessity.

[75] I will now consider whether the reliable "pared down" portion of Dr. Haskell's report or opinion meets the balance of the objective Mohan criteria, and the subjective qualitative cost-benefit analysis.

Relevance

[76] The Crown argues that the even the pared down expert evidence is relevant to a proper understanding of the behaviour of both complainants, and a fair, myth-free, assessment of their reliability and credibility. Both complainants exhibited behaviour that could be misunderstood by a trier of fact, especially a trier of fact operating under the "common-sense" (but actually myth-based) belief that a "real" victim of sexual assault would struggle, or call for help, or try to get away.

[77] Specifically, JB had numerous opportunities to get away, or call for help, during the alleged sexual assault. She did neither thing. In fact, the transaction ended with Mr. Hoggard telling her it was time for her to go. The trier of fact could of course conclude that JB did not leave and did not call out for help because there was no sexual assault. But they must reach this conclusion by a process untainted by impermissible myth and stereotype. JB herself was able to explain some of her behaviour. For example, she explained to police that she was really scared of Mr. Hoggard and did not scream as a result, but she could not explain why she did not leave. She told police: "everyone keeps asking me why I didn't leave but I didn't really know what to do". She described not being able to feel her body and thinking that if she just stayed it would all go away. At the preliminary inquiry she explained that she felt that she had to stay even though her train ticket (which Mr. Hoggard had purchased for her) was on her telephone. She also explained that she was terrified and thought Mr. Hoggard might try to kill her if she tried to run away. The expert evidence would alert the jury to possible explanations for JB's behaviour so they could fairly assess her evidence.

[78] MB testified that Mr. Hoggard was almost always on top of her throughout the transaction, but she did get access to her cell phone at one point. She did not call 911; she called her friend and asked the friend to call back and pretend MB was needed at work. The trier of fact could conclude that MB did this because there was no sexual assault, and she was simply constructing a polite way to leave. But, again, they must reach this conclusion free of myths and stereotypes. The expert evidence would alert the jury to other possible explanations for this behaviour so MB's evidence could be fairly assessed.

[79] Defence counsel argues that because the Crown is not seeking an opinion about the behaviour in this case the expert evidence is not relevant. I disagree. The Crown has not given Dr. Haskell any information about the instant case in order to minimize the possibility of prejudice; specifically, the danger that the jury could look to Dr. Haskell's evidence as providing some confirmation of the complainants. I am satisfied that the pared down version of Dr. Haskell's proposed evidence is relevant to help the jury understand behaviour they might otherwise mis-understand due to myths, possibly unconsciously held, about how a "real" sexual assault complaint would behave in the circumstances the complainants describe.

Necessity

[80] It has long been accepted that "there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave": R. v. D.D., 2000 SCC 43 at para.65. This central principle was articulated in the context of delayed disclosure. The Supreme Court went on to note that there may be many reasons a sexual assault complainant delays disclosure, "including embarrassment, fear, guilt, or a lack of understanding and knowledge". The majority concluded that a jury should be instructed that "a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant": D.D., para.65. The central principle underlying the D.D. instruction has now been extended beyond the context of delayed disclosure to encompass how a sexual assault complainant will mentally process a sexual assault, specifically, there is nothing necessarily "incompatible with resisting during a sexual assault, being in a state of shock, and only fully processing the assault somewhat later:" R. v. Rose, 2021 ONCA 408 at para.39.

[81] Both parties accept that the jury in this case must be instructed in accordance with the central principle that there is no inviolable rule as to how sexual assault victims will behave. There is no dispute that myths and stereotypes about this topic persist, and that the circumstances of this case are such that they can "reasonably be expected to arise": R. v. Barton, 2019 SCC 33; R. v. Chouhan, 2021 SCC 26 at paras.53-59.

[82] The central issue on this application is whether an instruction will be enough in the circumstances of this case, or whether it needs to be accompanied by expert evidence in order to be effective.

[83] Expert evidence must be more than helpful to be admissible, it must be necessary. Justice Paciocco, writing before he was a judge, explained that this requirement is met "Only when lay persons are apt to come to a wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts:" D. Paciocco, "Expert Evidence: Where Are We Now? Where Are We Going?" (1998), at pp. 16-17, cited by majority in D.D. at para. 57.

[84] It is well-established that expert evidence may be necessary to properly understand the behaviour of a witness, regardless of whether that behaviour is rooted in pathology (such as battered wife syndrome in R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852) or within the norms of how humans may behave in certain situations (such as delayed disclosure as described in D.D.). What is essential is that without expert help the trier of fact may not be able to understand the behaviour and draw appropriate inferences in relation to it. The inability to understand may be due to the operation of myths. Justice Wilson quoted the following explanation for the admission of expert evidence about the psychological effects of battering with approval:

It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge. (from New Jersey v. Kelly, 478 A. 2d 364 at 378 (1984), quoted at para.39 of Lavallee)

[85] There can be no serious question that myths and stereotypes may infect our "common sense" expectations of how a "real" victim would behave before, during, and after a sexual assault. The Court of Appeal recently adopted the following explanation about the dangers associated with myth-based and/or stereotypical reasoning:

Broadly speaking, myths and stereotypes rest on untested and unstated assumptions about how the world works or how certain people behave in particular situations. They often involve an idealized standard of conduct against which particular individuals are measured: R. v. CMG, 2016 ABQB 369 per Martin J. (as she then was), and quoted with approval in R. v. Lacombe, 2019 ONCA 938 at para.34.

[86] Myths and stereotypes about how a "real" victim of sexual assault would behave have a long history in the criminal justice system. In 1991, Justice L'Heureux Dubé, dissenting in part in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 SCR 577 identified "rape mythologies" about how a "real" or prototypical victim would behave, noting that "like most constructs" they "operate at a level of consciousness that makes it difficult to root them out and confront them directly" (see paras.140, 147-154). Ten years later, in R. v. Find, 2001 SCC 32 at paras. 101-103 the Supreme Court expressed concern about myths and stereotypes about sexual assault complaints, noting:

[They] are particularly invidious because they comprise part of the fabric of social 'common sense' in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors.

[87] Despite the passage of another 20 years, recent decisions recognize the continued operation of myths and stereotypes about the behaviour of a sexual assault complainant:

• It is a myth that a real victim would not dress or behave in a sexual fashion. To the contrary, a "real" victim may dress in a sexual fashion, engage in sexual behaviour and banter, make a plan to have sex, with the accused or others: R. v. Nyznik, 2017 ONSC 4392 at paras.138, 193.
• It is a myth that someone who does not want to engage in sexual activity will either physically resist or attempt to escape: CMG, at paras.68-71, citing R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595 (S.C.C.) at paras 36-37; R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 (S.C.C.) at para.101.
• It is stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not: R. v. Kiss, 2018 ONCA 184 at para.101

[88] Notwithstanding judicial recognition of myths and stereotypes, including that there is no typical response to sexual assault, the pull of myth-based "common sense" continues to be powerful. Even with keen judicial awareness of the problem, myths and stereotypes continue to infect the reasoning and inference drawing process:

• R. v. ARJD, 2018 SCC 6 - Despite explicitly instructing himself not to judge the complainant's behaviour based on its correspondence with the expected behaviour of a stereotypical victim of sexual assault, the trial judge did just that - by considering the lack of evidence that the complainant avoided the accused. A new trial was required as a result. The majority of the Alberta Court of Appeal (unanimously endorsed by the Supreme Court) noted:

This appeal represents an example of how deeply ingrained and seductive these myths and stereotypes can be [in this case the expectation that a "real" victim of sexual abuse would exhibit avoidant conduct or behavioural change]. In this judicial analysis the trial judge carefully and correctly cautioned himself against reliance on certain myths and then proceeded to rely on another - one he obviously did not recognize, and cloaked as it was with the faux imprimatur of common sense.

• R. v. Steele, 2021 ONCA 186 - The majority of the Court of Appeal found that the trial judge relied on stereotypical assumptions in concluding that the complainant's inability to explain why she entered an abandoned trailer with the accused detracted from her credibility, the stereotypical implication being that a willing decision to enter the trailer was inconsistent with the complainant's testimony that she was not interested in the accused and not consenting to sex.
• R. v. Lacombe, 2019 ONCA 938 at paras.31-34, 52 - The Court of Appeal ordered a new trial where the trial judge found that the sexual assault complainant's credibility was undermined because, among other things, she wore short pyjamas with no underwear, she did not immediately say no, did not leave, remained with the accused and continued to kiss him, and she did not immediately complain. These "common-sense" concerns were infected by myths and stereotypes about how the ideal complainant should behave. A new trial was required.
• R. v. ABA, 2019 ONCA 124 at para.11 - Despite instructing herself not to assess the victim's behaviour based on stereotypical assumptions about how a real victim would behave, the trial judge found that the complainant's failure to flee or call for help or avoid the accused undermined her credibility. The Court of Appeal found this was reversible error.

[89] At the opposite end of the spectrum, a new trial was required where a trial judge, who was aware of phenomena like the battered wife syndrome and the failure of sexually abused children to avoid their abuser, took those phenomena into account, in the absence of explicit evidence about them, when assessing the credibility of the sexual assault complainant: R. v. J.M., 2021 ONCA 150.

[90] Underlying all these cases is the need for inferences to be based on evidence. Where common sense plays a role in assessing evidence and drawing inferences about it, great care must be taken to ensure myths or stereotypes do not infect the common sense assumptions that are applied: R. v. J.C., 2021 ONCA 131.

[91] As noted in the relevance section, there are a number of circumstances in this case that give rise to a reasonable concern about myth-based reasoning. The anticipated evidence of both complainants contains features that could be misunderstood, as described above. There is no real dispute that steps must be taken in this case to avoid myths infecting the jury's application of its collective common sense. The real question, as noted at the outset, is whether this can be addressed through a jury instruction or whether expert evidence is required.

[92] This is a difficult question. The simplicity and clarity of a jury instruction is very appealing. Ultimately, however, I do not think it would be effective in the circumstances of this case. Not because jury's do not follow instructions, I believe that they do; but because an instruction alone will not make sense unless it includes at least some of the basic scientific phenomena that inform it. In other words, in the circumstances of this case, in order to apply the instruction that there is no one response to sexual assault, and that "real" victims do not necessarily call for help or struggle or flee, I believe that that the jury needs to understand why that may be the case.

[93] Possessed of this basic information, however, I do not believe that the jury also needs to be told about the links Dr. Haskell makes between basic neurobiological phenomena and sexual assault. The basic information about the neurobiology of trauma is enough to explain why a victim of sexual assault may not scream or struggle or try to get away, or behave particularly logically. That is all that is required to animate the anti-myth and stereotype instruction. It is not necessary to go on and explicitly link the science of neurobiology to the context of sexual assault. Thus, even if I had found this part of Dr. Haskell's opinion reliable, I would not have found it necessary.

[94] Unlike expert evidence about delayed disclosure, which is fundamentally about observed behaviour, the pared down expert evidence in this case is fundamentally about a possible "why" underlying behaviour (though even in the context of delayed disclosure, then CJC McLachlin wrote a searing dissent to the effect that the "why" underlying delayed disclosure, prior to hearing from the complainants, was necessary: D.D., paras.30-32).

[95] I also believe that the pared down expert evidence in this case is different from expert evidence about the science behind frailties in identification evidence, such as difficulties perceiving and recalling brief stressful events, and phenomena such as change blindness and unconscious transference. As the trial judge and the Court of Appeal found in R. v. McIntosh (1997), 1997 3862 (ON CA), 117 C.C.C. (3d) 385 (Ont.C.A.) at para.22 (and reiterated in R. v. Frimpong, 2013 ONCA 243), the difficulties related to accurate identification evidence fall within our common experience such that an instruction to remind juries to be careful about them is sufficient to ensure the trier of fact properly takes them into account. I do not think the science behind the brain and body's automatic responses to stress and/or trauma is, at present at least, part of our common experience such that an instruction reminding the jury of the need to be cautious about it will be sufficient. I accept defence counsel's elegant example that all of us have had some experience like falling off a bike and skinning a knee but not feeling pain until safely home. But the difficulty is that such responses occur largely at a sub-conscious level, thus we may not be in a position to recognize them sufficiently to apply a related jury instruction. Ultimately, I believe it is necessary to help the jury with the "why" behind the list of myths the jury will hear in order to prevent them taking hold in the circumstances of this case.

[96] Even with detailed judicial instructions about potential frailties in identification evidence, however, many accused still prefer a judge alone trial with a professional trier of fact well versed in the dangers of identification evidence where possible. In this case, the unconscious or continued operation of myths and stereotypes likely enure to the benefit of the accused, but it is the accused who has the power to select the mode of trial. The Crown cannot opt for a judge alone trial in this case.

[97] Finally, as noted above, I am mindful that the Court of the Appeal in J.C. emphasized that where inferences are rooted in common sense, that common sense must truly rest on shared norms. Otherwise, inferences must rest on evidence. In the circumstances of this case, I do not think it is enough to tell the jury what they cannot infer, without giving them some help with why, and also some evidence about what they can infer.

Absence of exclusionary rule

[98] It is agreed that there is no other exclusionary rule that applies in this case.

Properly qualified expert

[99] It follows from my conclusion above, that Dr. Haskell's work linking well-accepted phenomena associated with the brain and body's response to stress and trauma to her observations about sexual assault survivors is not the proper subject of expert evidence, that she is not a properly qualified expert in this area. No one is, at least at present, based on my understanding of the information before me. However, I do think she is qualified to give the jury a basic science lesson about well-accepted phenomena related to the neurobiology of stress and trauma (i.e. her pared down opinion). Indeed, I believe that she is both qualified and particularly well-suited to do this. She has spent the last twenty years of her career carefully studying the neurobiology of trauma and keeps current with the research. She is also a skilled and effective teacher.

[100] It remains to be determined whether Dr. Haskell is sufficiently objective to give this evidence. Defence counsel argues that Dr. Haskell's advocacy work on behalf of sexual assault survivors, in particular to make various players in the criminal justice system more understanding of, and responsive to, the needs and circumstances of sexual assault survivors, makes her biased and precludes her from being a properly qualified expert in this case.

[101] Dr. Haskell testified that she understands that as an expert her duty is to the court, and not to any party, to provide independent assistance by way of an objective unbiased opinion. In addition, she understands her duty is to stay firmly within the bounds of her expertise.

[102] Notwithstanding this evidence, defence counsel argues that Dr. Haskell's advocacy work on behalf of sexual assault survivors establishes a "realistic concern" that she is unable to comply with that duty. As a result, the burden shifts back to the Crown to establish on a balance of probabilities that Dr. Haskell is capable of complying with her duty to the court: White Burgess at 10,25, 32, 35, 40, 45, 46; R. v. McManus, 2017 ONCA 188 at para. 71; R. v. MacMillan, 2019 ONSC 5769 at paras.48-51.

[103] I am far from convinced that Dr. Haskell's advocacy work on behalf of sexual assault survivors is enough to raise a realistic concern about bias. As Justice Dambrot eloquently noted in MacMillan, the Supreme Court of Canada's opening paragraph in R. v. Barton 2019 SCC 33 was essentially a call to arms on behalf of justice system participants to address myths, stereotypes and sexual violence against women, yet no one would seriously suggest that the Supreme Court was too biased to hear sexual assault cases as a result. Barton began as follows:

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.

I believe that Dr. Haskell's advocacy work on behalf of sexual assault survivors is simply in line with the spirit of the Supreme Court's call to arms in Barton, and not a demonstration of bias.

[104] Assuming that Dr. Haskell’s advocacy work is sufficient to raise a real concern about bias, however, I am satisfied that the Crown has met its burden to show that Dr. Haskell is capable of complying with her duty to the court. Dr. Haskell's advocacy work on behalf of sexual assault survivors explains why she has informed herself about the neurobiology of trauma, and why she is such a good teacher and communicator in relation to this topic. But I do not think it results in her being unwilling or unable to fulfill her primary duty to provide fair, objective and non-partisan assistance to the court. She has no interest in the outcome of this case. She has no involvement with, or knowledge of, the complainants in this case. She was not involved in the investigation or prosecution in any way. In addition, the evidence she will be giving will be limited to a brief science lesson about basic and well-established phenomenon associated with the neurobiology of stress and trauma. There will simply be no room for advocacy or bias in that evidence.

Cost-benefit analysis of the pared down version of Dr. Haskell's evidence

[105] Notwithstanding that I have concluded that the pared down version of Dr. Haskell's evidence, consisting only of the well-established phenomenon associated with the neurobiology of stress and trauma, meets the Mohan criteria for admissibility, I must still consider whether the benefit of this evidence exceeds the risks of admitting it: Abbey, 2009, at para.76; White Burgess, at para. 24, 54. The benefit side of the analysis addresses issues relating to the probative value of the evidence. The court must consider the reliability of the evidence in terms of its subject matter, the methodology used by the proposed expert, the expertise and impartiality of the proposed expert: Abbey, 2009, at para. 87. The cost side of the analysis focuses on "consumption of time, prejudice and confusion", most importantly the "danger that a jury will be unable to make an effective and critical assessment of the evidence": Abbey, 2009, at para. 90.

[106] I am satisfied that the benefit of the drastically pared down version of Dr. Haskell's evidence exceeds its potential for prejudice. For the reasons described above, I am satisfied that the expert evidence is necessary for the anti-myth and stereotype instruction to be effective in the particular circumstances of this case, and for the jury to fairly evaluate the evidence.

[107] At the same time, the risk of prejudice associated with the pared down version of Dr. Haskell's evidence is low. It will be highly reliable in so far as it will be limited to only well-established phenomena associated with the neurobiology of trauma. It will be accompanied with an instruction that it is being provided to explain why there are many possible ways a sexual assault complainant can respond; there is no single way a "real" victim behaves.

[108] As noted above, I do not accept the defence complaint that Dr. Haskell is not impartial because of her advocacy work on behalf of sexual assault survivors. Nonetheless, the defence concerns can be raised in cross-examination, and considered by the jury in determining what if any weight to give to Dr. Haskell's evidence: MacMillan, para.73.

[109] Defence counsel fears that the expert evidence may cause the jury to play amateur psychologist in the absence of the required information and training. There is something to this concern, but the alternative is to give the jury no help understanding what may be complex behaviour (depending on what the jury finds happened) beyond a serious of prohibitions. I believe that the jury is entitled to help, if only to ensure that they give effect to the myth and stereotype prohibition. I am confident that we can arrive at instructions to accompany the evidence that keeps the jury properly focused on its role.

Conclusion

[110] There is no need for Dr. Haskell to testify that there is no inviolable rule about how people who are the victims of trauma like a sexual assault will behave, and there are many possible responses to sexual assault. That can come in the form of an instruction to the jury. I welcome the input of counsel before a jury is selected, so the jury can be instructed to this effect at the outset of trial before hearing evidence: R. v. Chouhan, para.53.

[111] Dr. Haskell will be permitted to testify about well-established phenomena associated with the brain and body's response to trauma in order to help jurors understand some of the reasons for the anti-myth and stereotype instruction. In addition, she will be permitted to testify that a sexual assault may be stressful or traumatic. Otherwise she will not be permitted to apply the science of the neurobiology of trauma to the particular context of sexual assault. It will be for the jury to decide whether and how this basic science may assist them in this case, as focused by my instructions.

[112] In order to stream-line proceedings and ensure that Dr. Haskell's evidence remains within the bounds of this ruling, I ask the Crown to pare down Dr. Haskell's proposed evidence to a simple science lesson about well-established phenomena associated with the neurobiology of trauma and provide a will-say to defence counsel. I have tried to begin this process by setting out my understanding of the accepted phenomena above in the facts section, in italics. If necessary I will be available to address any dispute about the permissible scope of Dr. Haskell's evidence in advance of jury selection.

[113] I am grateful to counsel for their exceptional help with this difficult issue.

G. ROBERTS J.

Released: August 4, 2021

COURT FILE NO.: CR-19-10000463

DATE: 2021-08-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

JACOB HOGGARD

REASONS FOR JUDGMENT

G. ROBERTS J.

Released: August 4, 2021