Court File and Parties

COURT FILE NO.: CR-19-4703

DATE: 20211119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jitesh Bhogal

Defendant

Kim Bertholet and Ilana Mizel, for the Crown

Peter Thorning and Maureen Salama, for the Defendant

HEARD: November 17, 2021

RULING

Pomerance J.

[1] The defence wishes to call Dr. Rootenberg to testify about his assessment of Mr. Bhogal. The doctor conducted two telephone interviews with Mr Bhogal; referred him to a psychologist for evaluation; and obtained information from various collateral sources. This is a ruling on the admissibility and scope of the evidence that the doctor can offer before the jury.

[2] I have ruled that some aspects of Dr. Rootenberg’s evidence are admissible, and some are inadmissible. I have arrived at that conclusion based on a careful review of the doctor’s testimony on the voir dire, and in the exercise of my role as a judicial gatekeeper.

[3] Expert opinion evidence can greatly benefit the fact-finding process by giving the jury the tools that it requires to assess the evidence adduced at the trial. Conversely, expert opinion evidence can distort the fact-finding process by overwhelming and usurping the trier of fact. There is a risk that an opinion cloaked in the mystique of expertise will be over-emphasized by the jury. Therefore, the court must take care in determining whether and to what extent expert opinion evidence is admissible.

[4] My ruling on this issue will be brief, as I do not wish to disrupt the ongoing trial. In addition, this ruling is relatively non-controversial as Mr. Thorning, counsel for Mr. Bhogal, expressed general agreement with the court’s concerns. I do not propose to catalogue each step of the admissibility inquiry in these reasons, though I have undergone the analysis in my deliberations. This ruling will, instead, seek to offer concrete guidance on the areas in which the expert can and cannot offer an opinion. As will be evident from the reasons below, some of Dr. Rootenberg’s analysis is irrelevant to the issues the jury must determine; other areas violate the rule of evidence. There is, however, a core area of his evidence that is admissible to support Mr. Bhogal’s defence of intoxication.

AREA OF EXPERTISE

[5] The defence sought to have Dr. Rootenberg qualified in various areas of forensic psychiatry, including:

a) Forensic psychiatry in general

b) Assessing and diagnosing major mental illnesses

c) Assessment of fitness, and criminal responsibility

d) Assessment and treatment of sexual offences

e) Violence, and risk assessment and management

[6] In light of the ruling that follows, I have determined that a much narrower range of qualification is appropriate. Specifically, I find that Dr. Rootenberg is qualified to offer expert opinion evidence in the area of forensic psychiatry, more specifically, the potential impact of cocaine consumption on mental processes, including the symptoms of cocaine-induced psychosis.

[7] Most of Dr. Rootenberg’s information was collected by way of Mr. Bhogal’s self-report about the incidents of the night in question. The jury will be instructed that the opinion is based on certain facts, and that they should consider to what extent the facts they find are the same or different than those considered by the expert.

[8] Dr. Rootenberg will testify that, based on the information received from Mr. Bhogal, he may have been in a cocaine-induced state of psychosis at the time of the events giving rise to the charge. This evidence is a building block for the defence at trial. Mr. Bhogal has testified that he has little memory of the events in question. He testified that he consumed a drug he believed to be cocaine on two occasions, and that he reacted with paranoia. He testified that he does not remember very much of night in question. It is the position of the defence that Mr. Bhogal’s intoxication was such that he could not form the specific intent for murder. Of course, Mr. Bhogal does not need to prove that he was in a state of cocaine-induced psychosis. He need only raise a reasonable doubt in the jury’s mind about his mental state at the time Ms. Taggart was killed.

INADMISSIBLE EVIDENCE

[9] Various aspects of Dr. Rootenberg’s evidence are inadmissible. Mr. Thorning fairly concedes that many aspects of the witness’ opinion run afoul of the law governing receipt of expert opinion. The early cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; and R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 have direct relevance to this issue, though the test for admission of expert opinion evidence has been modified since those cases were decided. The cases of R. v. Abbey, 2017 ONCA 540 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 have introduced a two-stage inquiry for admissibility and a requirement that the witness understand and articulate the expert’s duty to the court. Nonetheless, the crux of the issue here is that it is not open to an expert witness to testify that an accused’s character makes it unlikely that he committed the crime, subject to a very limited exception.

[10] In this case, Dr. Rootenberg took a comprehensive history from Mr. Bhogal and concluded that he was a pro-social and law-abiding individual, with no apparent history of aggression or criminality. This led him to conclude that the allegations in this case are “atypical” for the accused, or “out of character” for him. Having found that the conduct was out of character, this figured into the doctor’s conclusion that the offence might have been the product of cocaine-induced psychosis.

[11] There are various concerns with this aspect of the proposed opinion. First, it amounts to good character evidence – an assertion that Mr. Bhogal is not the type of person to commit this type of crime. The law is clear that the defence can only tender good character evidence in certain ways. Character evidence from an expert is only admissible where it can be shown that the perpetrator possesses unique and specific characteristics and the accused does not possess those characteristics.

[12] Cases in which psychiatric opinion as to character are admissible are rare. This is not one of them. Dr. Rootenberg is not suggesting that only a narrow class of individuals would be likely to commit this crime. His evidence is, rather, that it is out of character for Mr. Bhogal in light of his positive pro-social antecedents.

[13] The problem with this line of reasoning is that it is rooted in notions of character that have no place in a criminal trial. Persons are to be tried not for who they are, but for what they have done: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. The fact that a person has committed crime in the past does not, subject to the admission of similar fact evidence, indicate whether they committed the crime before the court. Similarly, the fact that an accused has led an apparently blameless life does not indicate whether he or she is to blame for a crime being tried. The problem with character is that it is not a fixed and stable notion capable of predicting behaviour with precision. People sometimes do act out of character. Crime is sometimes situation specific. General disposition evidence does not assist in determining guilt or innocence, whether it is evidence attesting to the presence or absence of a pre-disposition to crime.

[14] This point was made by Doherty J.A. in R. v. Suarez-Noa, 2017 ONCA 627. The testimony of the expert was as follows:

[80] I first consider whether Dr. Gojer’s opinion fell within the proper ambit of expert psychiatric opinion. Dr. Gojer did not testify that Mr. Suarez-Noa suffered from any identifiable mental disorder, or that he fell within any psychiatrically identifiable group. Instead, he described Mr. Suarez-Noa as “passive” and “non-aggressive… from a physical point of view”. Stripped to its essential core, Dr. Gojer’s testimony came down to the assertion that if one believed what Mr. Suarez-Noa told Dr. Gojer, Mr. Suarez-Noa was not the sort of person who would do what he did to Ms. Cowell unless some “significant event” caused him to lose control and react with extreme and uncharacteristic violence. In short, Dr. Gojer gave evidence of Mr. Suarez-Noa’s disposition, and more specifically, his disposition not to act violently in the absence of a “significant triggering event”.

In ruling the evidence inadmissible, Doherty J.A. observed:

[81] Psychiatric opinion evidence going to an accused’s disposition is admissible in limited circumstances. In the leading case of R. v. Robertson (1975), 1975 CanLII 1436 (ON CA), 21 C.C.C. (2d) 385 (Ont. C.A.), Martin J.A. wrote at pp. 429-30:

In my view, psychiatric evidence with respect to disposition or its absence is admissible on behalf of the defence, if relevant to an issue in the case, where the disposition in question constitutes a characteristic feature of an abnormal group falling within the range of study of the psychiatrist, and from whom the jury can, therefore, receive appreciable assistance with respect to a matter outside the knowledge of persons who have not made a special study of the subject. A mere disposition for violence, however, is not so uncommon as to constitute a feature characteristic of an abnormal group falling within the special field of study of the psychiatrist and permitting psychiatric evidence to be given of the absence of such disposition in the accused. [Italics in original; underlining added.]

[82] The limited basis for admitting expert evidence of disposition articulated in Robertson has been repeatedly applied in the Supreme Court of Canada: see R. v. McMillan, [; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; and R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600. In Mohan, at p. 37, Sopinka J. explained:

Before an expert’s opinion is admitted as evidence, the trial judge must be satisfied, as a matter of law, that either the perpetrator of the crime or the accused has distinctive behavioural characteristics such that a comparison of one with the other will be of material assistance in determining innocence or guilt… The trial judge should consider the opinion of the expert and whether the expert is merely expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group.

[83] Dr. Gojer did not suggest that Mr. Suarez-Noa fell into any “distinctive group” from a psychiatric point of view. To the contrary, he described Mr. Suarez-Noa as under stress, depressed, anxious, and distrustful, all feelings that fall within the normal range of human emotions. Dr. Gojer’s opinion was not based on a diagnosis or characterization of Mr. Suarez-Noa’s mental state as reflecting some recognized psychiatric disorder or condition. Instead, Dr. Gojer’s evidence reflected his personal opinion on what may have been in Mr. Suarez-Noa’s mind, based on Dr. Gojer’s assessment of Mr. Suarez-Noa’s mental makeup.

[15] This issue was more recently considered by the Court of Appeal in R. v. Wabegijig, 2021 ONCA 814, where it was held that evidence of the accused’s non-violent character did not advance the issues at trial:

[12] The appellant next submits the trial judge wrongly declined to take the appellant’s character into account when assessing whether the appellant was in a parasomnic state or acting under the influence of alcohol when he assaulted the victim. It is accepted that the appellant is not a violent person, has no history of sexually abusive conduct and finds that conduct abhorrent.

[13] The trial judge said, at para. 193:

He [the defence expert] went so far as to say that based on the unusualness of the behaviour, including the blatant and discoverable nature of the behaviour, it was more likely to be parasomnia or sexsomnia. In the view of this court, this opinion is overreaching on the part of the expert and an attempt to usurp the role of the trier of fact. It would also appear to be dangerous and illogical to suggest that because someone acts out of character, the actions are more likely to be involuntary.

[14] There was no doubt that the appellant’s conduct was totally out of character. The question was whether he acted totally out of character because he was asleep or because he was very drunk. Like the trial judge, we do not see how evidence of the appellant’s character can provide any insight into the reason he acted so uncharacteristically when he perpetrated the assaults. [Emphasis added.]

[16] This type of expert opinion evidence is also impermissible given its oath-helping character. As it was put in J-L.J., at para. 60:

Dr. Beltrami’s evidence said in effect that the respondent’s denial ought to be believed because he is not the sort of person who would do such a thing. This was close to oath-helping in circumstances not within the expert witness exception: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, per McLachlin J., at p. 248. As the trial judge excluded Dr. Beltrami’s evidence because of the lack of a “standard profile”, he did not go on to deal in his reasons with the necessity requirement, but it certainly would have been open to him to exclude Dr. Beltrami’s opinion on the basis of a “cost-benefit” analysis of the necessity requirement as well.

[17] The fact that Dr. Rootenberg did not detect any underlying mental disorder, or personality disorder on the part of Mr. Bhogal, is beside the point. There is no suggestion that he was not criminally responsible by reason of mental disorder. Like the issue of character, the absence of a psychiatric disorder does not make it any more or less likely that Mr. Bhogal is guilty of the charged offence. Persons may commit crime for any number of complex and highly variable reasons, independent of mental disorder or other psychological disturbance.

[18] Finally, various tools were used to assess the risk of criminal offending on the part of Mr. Bhogal. It is apparent that Dr. Rootenberg is often called to testify about risk assessment and risk management, as part of dangerous offender hearings, bail hearings, and sentencing hearings. There is little doubt that he is highly qualified to offer those opinions. However, risk assessment is also quite irrelevant to the decision that the jury must make in this case. The issue is not whether Mr. Bhogal was, by virtue of psychometric testing, seen to pose a statistical risk of offending. Nor is it whether he is likely to commit a crime in the future. Risk assessment is a notoriously imperfect science. Whatever its reliability is in predicting future behaviour, it is not a means by which to adjudicate events of the past. This case is not concerned with the likelihood that Mr. Bhogal might commit a crime. The question is whether, on the whole of the evidence led in court, the Crown has proved to the requisite standard of proof that he did commit a crime.

THE SCOPE OF PERMISSIBLE OPINION EVIDENCE

[19] There are aspects of Dr. Rootenberg’s opinion that are admissible before the jury. The doctor will indicate that, based on Mr. Bhogal’s self-report, he may have been under the influence of a cocaine-induced psychosis at the time of the incident. In his report, Dr. Rootenberg identified the criteria that are used to diagnose the presence of such psychosis. He testified that he relied on the fact that Mr. Bhogal consumed a drug believed to be cocaine, that he felt agitation and paranoia, and that he experienced what appeared to be delusions. He is not in a position to opine on whether Mr. Bhogal was in fact experiencing this type of psychosis but will say that it might have occurred in the circumstances.

[20] It seems to me that this opinion evidence is admissible at the instance of the defence. I am mindful of the critical right of Mr. Bhogal to make full answer and defence. The expert opinion that Mr. Bhogal might have been in a state of psychosis, and the implications of that condition, will provide the jury with the tools it needs to assess the evidence in this case. If the jury either accepts Mr. Bhogal’s testimony, or entertains a reasonable doubt based on that testimony, it will be in a position to consider whether the criteria for the psychosis diagnosis are made out. For example, Dr. Rootenberg testified that he characterized, as delusional, Mr. Bhogal’s fear that the people who stole drugs from him might come back and try to rob him or harm him. It will be for the jury to assess whether they agree that such a belief was delusional and irrational. It will be for the jury to assess the extent to which the effects of the cocaine affected Mr. Bhogal’s ability to form intent.

[21] Similarly, the jury will be in a position to assess the extent to which other actions were irrational, and therefore likely to be the product of a psychosis. Dr. Rootenberg characterized as “bizarre” certain behaviours such as climbing up onto the balcony and looking for people that had stolen drugs from him. I have determined that the doctor is not in a position to offer an opinion about whether conduct was “bizarre”. The term implies that the doctor is opining on whether certain conduct is common or uncommon in the commission of crime. He is not qualified to offer such an opinion, having not studied the area. Even if he had, anecdotal evidence of this nature is generally unhelpful and misleading: see R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272.

[22] Moreover, the issue of whether something is bizarre may lie in the eye of the beholder. The doctor characterized the climbing of the balcony as bizarre. However, some might think that it is an entirely rational step to take if one is seeking entry to a unit on the third floor. If the bizarreness of behaviour is relevant to the jury’s determination, it is for the jury, not the expert, to make that determination.

[23] Dr. Rootenberg characterized certain conduct as dangerous and risky. He will testify that the accused engaged in dangerous and risky conduct, and this is consistent with what one might see in a case of cocaine-induced psychosis. The description of conduct as dangerous or risky is not objectionable, as, unlike the term bizarre, it does not imply an empirical conclusion. It is an opinion, but one that the jury can agree or disagree with. It will be for the jury to assess whether conduct was risky and dangerous. Further, it will be for the jury to determine whether and to what extent they find it helpful to consider whether the conduct was risky and/or dangerous.

[24] The ultimate issue is whether Mr. Bhogal was capable of forming the requisite intent for murder, and whether he did, in fact, form that intent. The evidence of intoxication by cocaine and the possibility of a diagnosis of cocaine-induced psychosis is relevant to that issue. The centerpiece of the defence case is the testimony of Mr. Bhogal. If the jury accepts the testimony of Mr. Bhogal, or has a reasonable doubt based on his evidence, the testimony of Dr. Rootenberg may assist the jury in determining the inferences to be drawn from that evidence. If the jury does not accept Mr. Bhogal’s testimony or has a reasonable doubt on that basis, the testimony of Dr. Rootenberg will be of no value, as it is based on the facts as self-reported by Mr. Bhogal.

[25] It is understood that, while I have ruled certain evidence inadmissible at the behest of the defence, certain questioning by the Crown may require that I revisit this ruling. For example, if the Crown were to take issue with the thoroughness of the witness’ analysis, it would arguably be open for the witness to set out all of the considerations that led him to his opinion, including those set out above. That said, the Crown can challenge the validity of the witness’ view without opening that door. Should defence counsel or the witness perceive that evidence, ruled inadmissible, is necessary for a proper response in cross-examination, I will hear submissions and rule at that time.

Original Signed by “Justice R.M. Pomerance”

Renee M. Pomerance

Justice

Released: November 19, 2021

COURT FILE NO.: CR-19-4703

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Jitesh Bhogal

RULING

Pomerance J.

Released: November 19, 2021