COURT FILE NO.: CR-56/19
DATE: 2021 12 01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.S.
Ms. M. MacKenzie, for the Crown
Mr. A. Edgar, for Mr. L.S.
HEARD: October 28 and November 30, 2021
REASONS FOR DECISION - ADMISSIBILITY OF DEFENCE EXPERT EVIDENCE
CONLAN J.
I. Introduction
The Charges
[1] Mr. L.S. stands charged with sexual assault and sexual interference under sections 271 and 151, respectively, of the Criminal Code. The alleged incident took place in Oakville, Ontario in early September 2017.
The Trial
[2] The trial, judge-alone, is ongoing. The Crown’s case, subject to reply, is in. The defence case is nearing completion. The accused has not and is not expected to testify.
The Application
[3] On 28 October and 30 November 2021, a voir dire was held to determine the admissibility of proposed defence expert evidence. The only witness who testified on the voir dire was the proposed expert, Dr. Calvin Young. Two exhibits were entered on the voir dire – an earlier psychological report concerning the accused, based on an evaluation that was conducted in December 2017, prepared by Central West Specialized Developmental Services, psychometrist Ms. Henderson and registered psychologist Dr. Linder (exhibit 6, hereinafter referred to as the “Henderson report”), and Dr. Young’s report dated July 4, 2021 (exhibit 7).
[4] Dr. Young was tendered by the defence as an expert witness entitled to give opinion evidence regarding the accused’s cognitive and intellectual functioning. The Crown opposes the admission of Dr. Young’s evidence.
II. Analysis
The Burden and the Standard of Proof
[5] First, we should not overlook the burden and the standard of proof on this application. The burden is on the applicant accused, and the standard is on a balance of probabilities.
The Test Regarding the Admissibility of Expert Opinion Evidence
[6] Second, we ought to outline the test regarding the admissibility of expert opinion evidence. Succinctly put, there are two steps. First, the defence must establish the threshold requirements for admissibility – relevance (logical and legal), necessity, the absence of an exclusionary rule, and a properly qualified expert. Second, this Court must engage in a discretionary gatekeeping exercise and assess the probative value of the evidence versus its prejudicial effect. Of course, there is always the requirement as well that the proposed expert be aware of his duty to and be capable of giving fair, objective, and non-partisan opinion evidence. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, and R. v. Mohan, 1994 CanLII 80 (SCC).
A Summary of the Evidence of Dr. Young
[7] The accused is currently in Jamaica and has been throughout the trial. Dr. Young lives and works in Jamaica. Dr. Young met with the accused about four times, and in addition he spoke to the accused on the telephone. Dr. Young also spoke with the accused’s mother. Dr. Young reviewed the Henderson report.
[8] Dr. Young testified that he understands that his duty is to the court and not to the defence.
[9] Dr. Young testified that he has been qualified as an expert witness two or three times in the United States of America and a few times in Jamaica, but never in Canada. He has a PhD in psychology. He has a Master of Science Degree that includes a minor in psychometric testing. He also has a Master of Arts Degree. He has other certifications in the United States of America in counselling, substance abuse, and addictions. He is a registered psychologist in Jamaica. He is a member of professional psychology associations in America and in Jamaica. He has about 25 years of experience in the industry. He has prepared many, many reports in the past similar to exhibit 7.
[10] Dr. Young administered many tests to the accused. The particulars are outlined in exhibit 7, but the findings can be very briefly summarized as follows: the SLUMS test showed dementia processes for the accused; the MMSE showed a moderate cognitive impairment; the MoCA showed cognitive functioning below (worse than) moderate impairment; the RUDAS showed possible cognitive impairment; and the AD-8 showed cognitive impairment.
[11] As he stated in direct examination, “the instruments indicate impairments of cognitive/intellectual functioning”, and clear deficits in the accused’s decision-making abilities (deficits that most persons do not have), and those deficits would include the accused’s ability to analyze situations and predict consequences.
[12] Most germane to our case, because an issue in our case is whether the accused had the requisite mens rea for the offences in terms of the age of the complainant (she was, in actuality, under the age of 16), Dr. Young testified that, in the mind of the accused, that somebody is on a website or social media site for those 18 years and older and then tells the accused that she is 18 years old is conclusive evidence that she is in fact 18. In other words, according to Dr. Young, the accused would not realize that he should or could have enquired further.
The Crown’s Objections to the Admission of Dr. Young’s Evidence
[13] The Crown opposes the admission of Dr. Young’s evidence on two bases – he is not qualified, and he “is not the independent witness he ought to be”, in the words of Ms. MacKenzie.
[14] I reject the former argument. I accept the latter one. I therefore rule that Dr. Young’s evidence is inadmissible at trial.
[15] On the former, the Crown’s arguments about (i) Dr. Young not having a specialty in neuro psychology and/or forensic psychology, and (ii) not having a working expertise with persons with intellectual disabilities, and (iii) having used the wrong tests, and (iv) having failed to readminister the IQ test that was done in 2017, all go to weight and not to admissibility, in my view.
[16] The law is clear that Dr. Young does not have to be ideally qualified or the most qualified person to give this opinion evidence. He needs to be adequately qualified. He is, I find. He struck me as an intelligent professional with many years of experience administering these very tests for this very type of report. He has a post-graduate degree with a sub-specialty in psychometric testing. He demonstrated in both his report and in his oral testimony that he is intimately familiar with the various tests, their purposes, and the interpretation of their scores.
This Court’s Assessment of the Impartiality Criterion
[17] I want to be clear at the outset that I do not in any way attribute any bad motives to Dr. Young. In addition to his very impressive credentials, he was in many ways an impressive witness. He was well-spoken, patient, and polite with all counsel and with the Court.
[18] It is obvious to me, however, that the rules of expert evidence where Dr. Young lives and works, or at least Dr. Young’s understanding of those rules, is far different than what is acceptable here in Canada.
[19] An expert witness in Canada must be fair, objective, and non-partisan. Her duty is to assist the court. She must be aware of that duty and be willing to carry it out. If she is unable or unwilling to do that, and that inability or unwillingness can be evident in more than one way and can be found to exist despite the witness’ protestations otherwise, then her evidence cannot be admitted. White Burgess, supra, at paragraph 46.
[20] The proposed expert’s testimony that he is aware of his duty to the court and accepting that duty will generally be sufficient, but not always. Where the party opposing the admission of the evidence shows a realistic concern that the evidence ought not to be received for reasons of a lack of independence, then the burden shifts back to the applicant to show on balance that the concern is misplaced. It is not an onerous burden, but it is a burden nonetheless. White Burgess, supra, at paragraphs 47-49.
[21] While anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not lead to exclusion, it can be taken into account in the overall weighing of costs and benefits of receiving the proposed expert evidence. White Burgess, supra, at paragraph 49.
[22] I agree with the Crown that Dr. Young is more of an advocate for this accused than he is an independent witness for the Court. The role of advocate is evident throughout Dr. Young’s evidence:
i. at section 8 of his report (exhibit 7), in describing the legal history of the accused, Dr. Young appears to accept that most of the accused’s prior involvement with the police appears to center around him being the victim of mistaken identity and racial profiling (of course, that may be true, but Dr. Young would have no information on that and did not confine the commentary to something merely reported by the accused, and further the commentary is completely irrelevant to Dr. Young’s task);
ii. at section 11 of his report (exhibit 7), Dr. Young opines that the accused is not fully aware of the nature of the charges against him and the jeopardy that he is in (again, that is totally irrelevant to Dr. Young’s task);
iii. at section 11 of his report (exhibit 7), Dr. Young opines that the accused either did not or may not have understood that the age of consent for sexual activity in the jurisdiction (Ontario) is 16 years (again, that is completely irrelevant to Dr. Young’s task);
iv. at section 12 of his report (exhibit 7), Dr. Young comments on the accused’s lack of a complete understanding of what the possible penalties could be upon conviction, and his lack of understanding of what an acquittal is (again, that is completely irrelevant to Dr. Young’s task);
v. at section 14 of his report (exhibit 7), Dr. Young advises that the accused’s capacity to work with his counsel and provide relevant information is an area where any independent trier of fact must be carefully guided (totally irrelevant), and that the accused is a person who cooperates automatically with authority figures (completely irrelevant), and that on the day of his arrest he received a telephone call from a blocked number by an authoritative person (presumably a police officer) who failed to identify himself but simply threatened the accused with arrest if he did not cooperate (totally irrelevant), and that the accused was manipulated by the police into making a statement (irrelevant and directly contrary to this Court’s published ruling on the voluntariness of the said statement), and that there is good reason to be very concerned about the accused’s ability to work properly with his lawyer (totally irrelevant), and that the accused’s claims of being under duress, panic, and fear when he gave his police statement “should be of serious concern to anyone who is interested in fairness or justice for individuals of limited intellectual capabilities who are involved with the Law enforcement system” (irrelevant and directly contrary to this Court’s published ruling on the voluntariness of the said statement), and that the situation with the police statement became even more problematic because the accused appears to have not been afforded the presence of trusted individuals who could properly assist him in dealing with the officers (irrelevant and contrary to the spirit of this Court’s ruling on the voluntariness of the said statement);
vi. at section 15 of his report (exhibit 7), Dr. Young provides commentary about the accused’s lack of any inappropriate behaviour at the police station and his socially appropriate behaviour at court (the former probably true, and the latter definitely true, but all totally irrelevant);
vii. at section 16 of his report (exhibit 7), Dr. Young states that he has no information to suggest that the accused would not testify truthfully such that an independent trier of fact could rely upon his testimony (completely irrelevant);
viii. at section 17 of his report (exhibit 7), Dr. Young states the following – “it is this clinician’s opinion that [the accused] is an individual with limited intellectual and cognitive abilities who did not wilfully engage in any act he knew he was not supposed to engage in at the time he was alleged to have engaged in sexual activity…” (the latter half of that opinion is, of course, for me to decide, as the ultimate issue in the prosecution); and
ix. on the final page of his report (exhibit 7), Dr. Young states that “[i]f [the accused] is somehow adjudicated to be legally responsible for the behaviour subject of this particular legal proceeding, it is my assessment and recommendation – given the evidence that I have reviewed and recounted in this Report to the Court, that society will not be served with his incarceration” (totally irrelevant).
[23] These examples of Dr. Young’s irrelevant musings are not meant to call into question the good doctor’s ethics and/or integrity. They are gross illustrations, however, of his straying far afield from what he was tasked to do and him becoming a clear advocate for the subject. All of these examples are things that cast the accused in a sympathetic light but which have absolutely nothing to do with whether the accused is cognitively and/or intellectually impaired
such that he would not likely have understood the need to investigate any further the age of the complainant.
[24] Dr. Young is a compassionate man, which by itself is not at all problematic, but his evidence reads more like that of a spokesperson who believes in the righteousness of this accused’s position and wants to do whatever he can to help persuade the trier of fact of that position as well. It reads more like what I suspect the witness’ reports look like in the disability assessment work that Dr. Young does for the council in Jamaica.
[25] Putting aside the Crown’s complaints that Dr. Young failed to obtain a single document from a collateral source (aside form the Henderson report) and failed to speak to a single collateral contact, despite the highly self-reporting nature of the information provided to him, legitimate complaints in my view, the above examples, with much respect for Dr. Young and his accomplishments and the valuable services that he provides, collectively, demonstrate to me a clear inability on his part to provide fair, objective, and non-partisan evidence to this Court.
[26] I have asked myself whether certain offending portions of the report (exhibit 7) can simply be ignored or excised, or even if the entire report could be ruled inadmissible but still permitting the viva voce evidence to stand, but in the end I find that the only reasonable decision is to entirely not admit the evidence. Even if I am wrong that there is an inability to provide independent evidence, the cost of admitting Dr. Young’s evidence outweighs its benefit. There are other obvious and inoffensive ways for the defence to adduce the type of evidence that might support its position if it chooses to do so.
The Hearsay Problem
[27] There is another, equally fundamental, reason why Dr. Young’s evidence cannot be admitted at trial. It is infused with rank hearsay.
[28] There is nothing objectionable about an expert witness taking into account the opinions of others and assuming certain facts in forming her opinions, but where the facts upon which she relies for the formation of those opinions are not in evidence, then the opinions are essentially worthless. R. v. Zundel, 1987 CanLII 121 (ON CA), 58 O.R. (2d) 129 (C.A.), [1987] O.J. No. 52, 35 D.L.R. (4th) 338, 18 O.A.C. 161, 56 C.R. (3d) 1, 31 C.C.C. (3d) 97, 29 C.R.R. 349, [1987] CarswellOnt 83.
[29] Dr. Young stated several times in his oral testimony that the clinical interview is the “gold standard”, that is, very important to his work. It can only be assumed that it was so in this matter, as otherwise there was no point in Dr. Young making that very clear to this Court when he was being cross-examined about the psychometric testing that he conducted.
[30] Dr. Young did not review the accused’s statement to the police, whether the audio-video recording or the transcript or both. He did not review any of the disclosure in this case. He did not review any trial transcripts. He did not review any school records or employment records or medical records regarding the accused.
[31] Thus, everything that is contained in Dr. Young’s report (exhibit 7), in terms of the accused’s background, including his schooling and his employment and his medical history, and in terms of the “facts” of what happened on the date in question, besides the limited information contained in the Henderson report, came from the accused and his mother.
[32] There is no evidence at trial from the mother. There is no evidence at trial from the accused except for what is contained in his audio-video police statement. And that statement has almost no information about the accused’s background, including his schooling and his employment and his medical history, and what the accused told the police about what happened on the date in question bears little resemblance to what Dr. Young assumed the facts to be.
[33] For example, at the signature page of Dr. Young’s report (exhibit 7), there is an indication that the accused was expressly told by the complainant and her friend, before the rendezvous, that they were 18 years old. That is not at all what the accused said in his police statement. He stated first that he knew that the complainant was 14 years old (page 28 of the transcript), and that he knew that the other girl was 15 years old. Later, at page 31 of the transcript, the accused said that he was told in advance of the meeting that the two girls were 16 years old. Later still, at page 60 of the transcript, he stated that he was told by the complainant that she was 16 years old.
[34] There is simply no evidence before this Court that the accused was told before the meeting that the two girls were 18 years old.
[35] Further, there is nothing in the police statement about the accused’s reliance on a belief that only persons 18 years of age or older could be on the social media platform that he accessed to meet the complainant, and yet that is a significant “fact” that was assumed by Dr. Young, as evident from the signature page of his report. Dr. Young mentions that “fact” in the very same sentence that he concludes that the accused believed that he took adequate steps to address the issue of the complainant’s age.
[36] There is simply no evidence before this Court that the accused relied on his belief that only adults could be on the social media website that he used to first communicate with the complainant.
[37] In summary, Dr. Young’s evidence cannot be admitted because almost all of the information that was provided to him is inadmissible hearsay. I doubt that Dr. Young would have offered the opinions that he has based solely on the psychometric testing of the accused, ignoring the bulk of the information gleaned from the “gold standard” clinical interviews, and thus Dr. Young’s opinions, relying as they do on evidence that is not before this Court, are essentially worthless.
[38] That is not intended as a criticism of Dr. Young. As these reasons are meant to help the accused understand why the ruling is what it is, a simple example might be helpful. In the course of a dangerous driving case, the accident reconstructionist testifies that an important fact in his analysis is the condition of the roadway – it was icy and had not been plowed. No evidence is presented during the trial about the condition of the roadway. In those circumstances, the analysis of the reconstructionist has limited to no value.
III. Conclusion
[39] The application by the defence is, therefore, dismissed. The evidence of Dr. Young is not admissible at trial.
[40] Exhibits 6 and 7 shall become exhibits 1 and 2 on the voir dire. Those documents shall not form part of the trial evidence. The evidence on the voir dire shall not be applied to the trial proper.
“C.J. Conlan”
Conlan J.
Released: December 1, 2021
COURT FILE NO.: CR-56/19
DATE: 2021 12 01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.S.
REASONS FOR DECISION - ADMISIBILITY OF DEFENCE EXPERT EVIDENCE
Conlan J.
Released: December 1, 2021