COURT FILE NO.: CR-56/19 DATE: 2022 04 11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – L.S.

Counsel: Ms. M. Ward, for the Crown Mr. A. Edgar, for Mr. L.S.

HEARD: April 8, 2022

REASONS FOR DECISION

ADMISSIBILITY OF NEW 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 just finished on the last Court date. The accused did not testify.

The Application

[3] On April 8, 2022, 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 tendered expert, Brandie Stevenson. Numerous exhibits were entered on the voir dire, including Ms. Stevenson’s curriculum vitae (Exhibit 1) and her report (Exhibit 2).

Why this New Defence Expert Evidence was Tendered

[4] In an earlier ruling, R. v. L.S., 2021 ONSC 7916, this Court held that the evidence of Dr. Calvin Young, a psychologist in Jamaica, where the accused is currently and where he has been throughout the trial, retained by the defence, was inadmissible at trial because of that proposed expert’s inability to provide fair, objective, and non-partisan evidence to this Court (paragraph 26) and because of serious hearsay concerns with that evidence (paragraph 37).

[5] In light of that ruling, the defence applied for and obtained a lengthy adjournment of the remainder of the trial, in order to retain and tender another expert witness who could speak about L.S.’ alleged intellectual deficits and how those might affect his decision-making, specifically what reasonable steps he might take to ascertain the age of someone that he chooses to have sexual activity with. Ms. Stevenson was ultimately retained by the defence for that purpose.

II. Analysis

The Burden and the Standard of Proof

[6] As indicated in this Court’s prior ruling, 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

[7] Further, as also stated in this Court’s prior ruling, there are two steps to the admissibility determination of this proposed expert evidence. 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 her 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 80 (SCC).

The Only Issue Here is the Impartiality Requirement

[8] Quite responsibly, Ms. Ward, for the Crown, focussed the enquiry to one narrow issue – is Ms. Stevenson aware of her duty to and capable of giving fair, objective, and non-partisan opinion evidence?

A Brief Summary of the Evidence of Ms. Stevenson

[9] Ms. Stevenson was tendered by the defence as an expert witness entitled to give opinion evidence at trial in the following field(s): the cognitive abilities, decision-making abilities, and overall skills of L.S.

[10] Ms. Stevenson has a B.A. Degree, in psychology and sociology, earned from Queen’s University. She completed some post-graduate work in behavioural science at St. Lawrence College, in Ontario. She has a M.A. Degree in applied forensic psychology. She also attended the Chicago School of Professional Psychology. She has been a registered psychologist with the College of Psychologists of Ontario since 2016. She has been qualified as an expert witness in this same field of expertise on four prior occasions in Ontario. She testified that she owes her duty, as an expert witness, to this Court.

[11] I found Ms. Stevenson to be a well-spoken, very knowledgeable, and very experienced expert witness.

[12] Like Dr. Young had, Ms. Stevenson reviewed and relied, in part, on an earlier psychological assessment of L.S. completed in December 2017 (Exhibit 13). Ms. Stevenson testified that the said earlier assessment, completed by professionals that she knows well and whom she spoke with in order to prepare her own report, is still valid because our cognitive abilities, absent disease or dementia for example, do not really change over time.

[13] Ms. Stevenson testified that L.S.’ IQ is extremely low. It is at a score of 61, while the average is between 90 and 110. 99.5 per cent of the population functions better than L.S. in terms of cognition, Ms. Stevenson stated. In addition, an assessment tool administered by Ms. Stevenson revealed that L.S. has significant deficits in his executive functioning – thinking, judgment, decision-making, and planning. Although he has been told by his mother to check the identification of any girl that he is with in order to confirm her age, according to Ms. Stevenson, it would be hard for someone like L.S. to do that effectively. A very informal exercise that Ms. Stevenson performed with L.S., where she showed him images of males and females and asked him to guess their ages, demonstrated, according to Ms. Stevenson, that L.S. has major problems determining, accurately, the age of someone. Ms. Stevenson stated that his problems doing so are evident even where he is provided with a date of birth.

[14] Ms. Stevenson’s opinion is that L.S. has an intellectual disability in the mild/moderate range.

[15] When asked about any concerns that L.S. is faking his intellectual deficits, Ms. Stevenson stated that she has no such concerns.

[16] When asked a hypothetical question, if L.S. was presented with information on a dating website that someone was 18 years old, what would he do with that information, Ms. Stevenson testified that he would likely just accept it without enquiring further.

[17] The most relevant part of Ms. Stevenson’s evidence to the specific issue here, that is her impartiality, concerns her treatment of information obtained by her, and by the authors of the December 2017 assessment report, from the mother of L.S.

[18] As Ms. Ward ably submitted, why is there nothing in Ms. Stevenson’s report about the mother’s untruthful information supplied to the authors of Exhibit 13? And why was Ms. Stevenson so reluctant in cross-examination to acknowledge the mother’s intention to mislead those authors of the earlier assessment report?

This Court’s Ruling on Ms. Stevenson’s Impartiality

[19] I am satisfied that Ms. Stevenson knows that her duty is to this Court and that she is capable of giving fair, objective, and non-partisan opinion evidence.

[20] This Court’s ruling is that the evidence of Ms. Stevenson is admissible at trial. The evidence on the voir dire shall be applied to the trial proper, subject to any submissions that counsel may wish to make on that point.

[21] I want to be clear that I share Ms. Ward’s concerns about the veracity of the mother’s information and how that might affect the foundation of Ms. Stevenson’s opinions, particularly given her testimony that she relied “heavily” on information that she obtained from the mother, and spoke with the mother twice, and has extensive notes from her discussions with the mother. Those concerns, however, are more properly dealt with, on these facts, in terms of the weight to be attached to Ms. Stevenson’s evidence.

[22] This Court is concerned about why Ms. Stevenson does not appear to be more skeptical about information supplied by L.S.’ mother, by referring in her own report to the rather extensive commentary contained in Exhibit 13 about the inaccurate information given by the mother to the authors of that earlier assessment report, and/or by calling the mother’s untruths “lies” rather than mere “exaggerations”, as suggested to her by Ms. Ward in cross-examination on the voir dire, as examples, but I do not see those potential deficits as being admissibility concerns. These are, rather, points for discussion in closing submissions at trial.

Trial Management Issues

[23] At the next “speak-to” Court attendance, on June 3, 2022, we will confirm whether the July 5, 2022 Court appearance will, indeed, be confined to closing submissions by counsel. If so, the defence would proceed first.

[24] Finally, there was an affidavit filed by the defence at the last Court attendance, and that affidavit was made the next numbered exhibit at trial. Because the Registrar was not one who had been involved with the trial previously, and not one from Halton, we could not assign a number to that affidavit trial exhibit. That shall be clarified before or at the June 3rd Court attendance. As well, if the voir dire evidence is applied to the trial proper, then there will be additional trial exhibits to have noted. It is imperative, therefore, that counsel and the Court be provided with a proper trial exhibit list before the July 5, 2022 Court attendance. This Court orders that be done.

Conlan J.

Released: April 11, 2022