COURT FILE NO.: CR 17-69
DATE: 2022-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
S. Doherty and P. McDermott, on behalf of the Crown
Crown
- and -
PETER KHILL
J. Manishen, for the Accused
Accused
HEARD: December 9 and 12, 2022
A. J. Goodman J.:
AMENDED
RULING ON ADMISSIBILITY OF DR. COLLINS EXPERT OPINION EVIDENCE
[1] The defence proposes to call a forensic psychiatrist, Dr. Peter Collins, at trial to provide forensic psychiatric evidence and, in particular, to opine generally on the decision-making processes and psychological reactions of an individual subjected to stress or dangerous situations with reference to repetitive police or military training.
[2] I had the opportunity to review the report drafted by Dr. Collins, along with his extensive curriculum vitae, and the viva-voce evidence presented during the voir dire.
[3] At the conclusion of the submissions, I provided a brief oral ruling with respect to the threshold admissibility of Dr. Collins’ proposed expert opinion evidence. I held that the proposed evidence was admissible, albeit pared down. The parties were advised that written reasons would follow. These are my Reasons.
Positions of the Parties:
[4] The defence submits that Dr. Collins’ evidence on point is properly the subject of expert psychiatric opinion. The defence concedes that Dr. Collins did not examine the accused and can only opine generally on the issues raised in his November 29, 2022 report.
[5] The defence says that, given the specific issues in this case, this expert evidence is necessary and meets the requisite requirements for its admissibility.
[6] While the Crown concedes the overall expertise of this witness, its objection stems from the scope of the opinion being proffered on the issue of necessity. In the alternative, the Crown submits that if the expert opinion evidence is admissible, then the evidence needs to be significantly narrowed to ensure that its prejudicial effects does not outweigh its limited probative value.
[7] The Crown says that the proposed evidence of Dr. Collins is only potentially relevant to one issue, the subjective element aspect of self-defence. The Crown submits that the jury can draw common sense conclusions from the evidence and does not require expert testimony. The evidence will only serve to confuse the jury and does nothing to add to the assessment of the relevant issues at trial.
[8] The Crown submits that the preconditions to admitting expert evidence on these general issues are not met.
The Proposed Evidence:
[9] Dr. Collins was asked by the defence to comment on the following questions.
a) What are the neurobiological responses that go on in the brain when faced with a significant danger or threat?
b) How do these responses affect the process of decision-making from the standpoint of whether someone can make wholly calculated or rational assessments?
c) How quickly does that process of decision-making take place? Is it something that happens at the conscious level?
d) Under stress, what happens with respect to the brain’s response? Is anything produced that may affect a person’s normal process of logic, reason, problem solving, or planning?
e) My client had several years in the military service with some extensive training. While this took place several years before the incident giving rise to the chare, could [it] still have some effect on how he may have responded to the stressful situation he was facing?
[10] Dr. Collins’ November 29, 2022 report responds to the five questions and concludes: “Arousal of the sympathetic nervous system will narrow and distort perception, can inhibit rational decision making, deteriorate motor skill performance, and greatly reduce memory immediately after a critical incident. This SNS response is automatic, involuntary, and uncontrollable. Past military training can also influence how a person can respond to stress. Training can produce a pattern of behaviour, thinking, and reaction to critical incidents.”
[11] During the voir dire, Dr. Collins testified in relation to the opinions provided in his report, filed as a lettered exhibit at trial (“M”).
[12] Dr. Collins recognized that his opinion was related to generalities and not to the specific accused or the case at bar.
Legal Principles:
[13] In the seminal case of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, Sopinka J. provided a framework for the admissibility of expert opinion evidence. The admission of expert opinion depends on the application of the following criteria:
a) Relevance (logically relevant to a material issue);
b) Necessity in assisting the trier of fact;
c) The absence of any exclusionary rule; and
d) A properly qualified expert.
[14] The logical relevance of proffered expert opinion evidence is a threshold question of law to be determined by the trial judge. Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence. The jurisprudence suggests that logical relevance is a low threshold.
[15] In R. v. K. (A.) and K. (N.) (1999), 1999 CanLII 3793 (ON CA), 137 C.C.C. (3d) 225 (Ont. C.A.), at paras. 71-72, Charron J.A. (as she then was) held:
The opinion rule is a general rule of exclusion. Witnesses testify as to facts. As a general rule, they are not allowed to give any opinion about those facts.
Opinion evidence is generally inadmissible. Opinion evidence is generally excluded because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issue in the case.
[16] The opinion must be “reasonably necessary” to assist the jury, though it need not be “absolutely necessary”: Mohan, at p. 23, R v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301.
[17] The proposed evidence needs be more than merely “helpful”: R. v. D.D. [2002] 2 S.C.R. 275 at para. 47. Expert evidence must be necessary in order to allow the fact finder: (1) to appreciate the facts due to their technical nature, or; (2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge: R. v. Lee, 2018 ONSC 377, at para. 27 citing J. Sopinka, S.N. Letterman & A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 620, citing Mohan, at p. 23.
[18] The expert evidence need not, on its own, tend to establish a fact in issue on a balance of probabilities. The evidence must, however, contribute in a meaningful way to the proof or likelihood of the existence of the fact at issue. Opinion evidence lacking or deficient in probative value should not be admitted.
[19] Where the expert opinion evidence is otherwise admissible, it may nevertheless be excluded on the application of the trial judge’s discretion to exclude evidence where the costs of its receipts outweigh the value of its admission in the circumstances of a specific prosecution. This is the “cost-benefit analysis” referred to in Mohan – a highly discretionary balancing exercise undertaken by the trial judge overarching the legal determination of the admissibility of all evidence: Mohan, at p. 21.
[20] In the leading case of White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court of Canada provides further direction on the rules of admissibility. There is now a robust degree of gatekeeping function required by trial judges. The judge determines whether the benefits of admitting the expert opinion evidence outweigh its potential risks. This has been referred to as the second stage but it is really an application of the general exclusionary rule. In essence, to admit the opinion evidence, it ought to provide information that is likely outside the experience or knowledge of the jury, and relates to something about which ordinary people are unlikely to form a correct judgment without expert assistance.
[21] In R. v. Abbey #2, 2017 ONCA 640, the court had another opportunity to reframe the test for the admissibility of expert opinion evidence. In referring to White Burgess, the court summarized the test as follows, at paras. 48-49:
Expert evidence is admissible when:
- It meets the threshold requirements of admissibility, which are:
a. The evidence must be logically relevant;
b. The evidence must be necessary to assist the trier of fact;
c. The evidence must not be subject to any other exclusionary rule;
d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is:
i. Impartial,
ii. Independent, and
iii. Unbiased.
- The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as: legal relevance, necessity, reliability, and absence of bias.
In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.
[22] In R. v. J. (J-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47, the Supreme Court described the operation of the general exclusionary rule in terms of criteria for reception “measured against the counterweights of time, prejudice and confusion.”
[23] The cost-benefit analysis demands a consideration of the extent to which the proffered evidence is necessary to a proper adjudication of the fact(s) to which that evidence is directed.
[24] When considering the prejudicial effect or the “cost” side of the ledger, the trial judge must not only consider the “various risks inherent in the admissibility of expert evidence, but rather, also whether the evidence may divert the jury’s attention from the real issue(s) in the case. This may further run the risk that the jury will “abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury”: Abbey, at para 90.
[25] It is settled law that the admissibility of an expert opinion may also depend on to what extent the opinion is founded on proven facts and to what extent does the proposed expert opinion supports the inference sought to be made from it.
Discussion:
[26] The trial judge’s duty is to ensure that the gatekeeper function of admissibility of expert evidence or any evidence for that matter is considered. Appellate courts expect that trial judges will exercise this important gatekeeping function with diligence and due regard: see R. v. Sekhon, 2014 SCC 15, [2014] SCC 15, [2014] 1 S.C.R. 272.
[27] In this matter, my considerations are premised on the second factor arising from Mohan, referred to as “necessity” and the third factor, “the absence of any exclusionary rule”. The jurisprudence provides that reliability also forms an essential consideration in the overall mix of factors as well as the residual discretion a trial judge has regarding any evidence as to its probative value versus prejudicial effect. Some of the questions to be posed are: What is the field of expertise? What are the particular expert qualifications within that specialization to apply on the issues raised here? Is the proposed evidence necessary and more than merely helpful on the issues?
[28] It is true that an opinion must originate from an individual having greater knowledge or skill than the trier of fact. There must be a connection between the opinion and the witness’ special knowledge, skill, and experience or education regarding the specific issue in contention. In other words, has the witness acquired some special particular or peculiar knowledge of the issues at hand?
[29] At the first trial, the accused was acquitted. Here, he has pleaded not guilty to second degree murder. The real issue for the jury is whether the Crown has negated self defence and whether the accused had the requisite state of mind to commit murder.
[30] The Crown advances several cases in support of its opposition to the admissibility of the expert evidence.
[31] The Crown says that Dr. Collins’ evidence is similar to that offered in R. v. McIntosh, (1997), 1997 CanLII 3862 (ON CA), 117 C.C.C. (3d) 385 (Ont. C.A.), insofar as it states how memory and perception may be affected by quick and stressful events. In McIntosh, it was held that expert evidence to the effect that all witnesses have problems in perception and recall with respect to what occurred during any given circumstance that is brief and stressful is “not testifying [to] matters that are outside the normal experience of the triers of fact: [it is] reminding the jury of the normal experience”: at para. 20.
[32] In R. v. M. (B.), (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1, (C.A.), Rosenberg J.A. cited McIntosh with approval and excluded those portions of the proposed expert evidence dealing with the effects of trauma on memory but included those portions of the expert evidence respecting very early childhood memory of sexual abuse, with the latter being held to be “outside the normal experience” of jurors. Both McIntosh and M. (B.) were cited with approval in R. v. Perlett (2006), 2006 CanLII 29983 (ON CA), 82 O.R. (3d) 89 (C.A.), a case dealing with expert opinion evidence related to memory and the impacts of traumatic events.
[33] The Crown says that this was also the basis for rejecting expert testimony respecting mis-identification and cross-racial identification issues in relation to a mall shooting in R. v. Myrie, 2003 CanLII 48214 (Ont. S.C.).
[34] I find that these cases are distinguishable. The proposed expert evidence in this case is not linked to an issue of memory, recall, sexual abuse, identification, or the overall impact of trauma. Moreover, the more recent cases provided by the Crown earlier this morning focuses on the application of evidence in relation to s. 34(1)(c) and s. 34(2) of the Criminal Code. They do not refer to the specific issue here and are not of assistance to my overall analysis.
[35] While I am mindful that it is the exclusive domain of the trier of fact to assess the competing inferences to be drawn, as trial judge I am able to conduct a limited analysis or weighing of such inferences in my overall assessment of the admissibility question.
[36] Thus, I must determine as a matter of law whether the proffered evidence is necessary, having regard to the existing evidentiary record and the issues raised by the prosecution and the defence. In my view, that is exactly what the proposed evidence entails here. I am persuaded that the evidence is not misleading in its effect in a manner out of proportion to its reliability.
[37] Dr. Collins’ credentials are impeccable. He has also served with the Canadian Armed Forces on tours in Afghanistan. There is not doubt that he can formulate an opinion, while not merely regurgitating literature, research or other sources independent of his knowledge and experience.
[38] This issue was discussed at the previous trial, albeit with a different expert witness. In R. v. Khill, 2020 ONCA 151, 149 O.R. (3d) 639, Doherty J.A., for the Court of Appeal, held at paras. 123-124:
There is merit to the Crown's argument that Dr. Miller's evidence was unnecessary. In the end, it seems to have come down to little more than the common sense proposition that intensive training involving the repetition of physical actions can influence behaviour in certain circumstances even years after the training has stopped. The absence of any cross-examination by the Crown would suggest that Dr. Miller's evidence was hardly contentious.
Although I agree with the Crown that Dr. Miller's evidence added little, I think it did offer something. Dr. Miller's evidence offered some neurological and clinical support for the "common sense" proposition that the kind of training received by Mr. Khill would remain operative even years after the training ceased.
[39] In R. v. Forcillo, 2015 ONSC 8023, aff’d 2018 ONCA 402, the issue was whether the evidence of Dr. Miller was beyond the knowledge of the jury or whether its purpose was to support or enhance the ultimate credibility of the accused’s evidence, rather than provide a scientific context against which the credibility or reliability of the accused’s evidence can be properly evaluated by the jury.
[40] In Forcillo, the Crown submitted that, in essence, the evidence of Dr. Miller reduced to the proposition that perception and memory may be impacted by a stressful or traumatic event which is a subject that is within the common knowledge of jurors and accordingly fails the necessity criteria in Mohan. The Crown relied upon the decisions of the Ontario Court of Appeal in Perlett and McIntosh.
[41] At para. 10, Then J. stated that “without extensively analyzing these authorities, I accept the defence submission that both these authorities are distinguishable on the basis advanced in their factum”. At para. 12, Then J. goes on to state:
In my view, while an ordinary juror may appreciate that stress may well effect [sic] perception, it is beyond the experience of ordinary jurors to appreciate the effect of stress on perception in the circumstances faced by some police officers when confronted with a lethal threat and in circumstances where flight is not an option. In my view, the specialized knowledge of an expert such as Dr. Miller may assist the jury to properly appreciate the matters in issue.
Also, in my view, the proffered evidence of Dr. Miller cannot be excluded on the basis that it is led to enhance the credibility of the accused to the extent that the proffered evidence reflects on the accused’s credibility. I refer to paragraph 51 of the decision of the Supreme Court of Canada in Marquard as follows:
For this reason, there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. Professor A. Mewett describes the permissible use of this sort of evidence as "putting the witness's testimony in its proper context." He states in the editorial "Credibility and Consistency" (1991), 33 Crim. L.Q. 385, at p. 386:
The relevance of his testimony is to assist ‑‑ no more ‑‑ the jury in determining whether there is an explanation for what might otherwise be regarded as conduct that is inconsistent with that of a truthful witness. It does, of course, bolster the credibility of that witness, but it is evidence of how certain people react to certain experiences. Its relevance lies not in testimony that the prior witness is telling the truth but in testimony as to human behaviour.
[42] Then J. admitted the evidence, while acknowledging that some of the concerns expressed may be present but can be overcome by cross-examination: at para. 20.
[43] In R. v. Hoggard, 2021 ONSC 5365, Roberts J. considered expert evidence in relation to how victims of trauma behave, including those subjected to sexual assault. While the case is wholly distinguishable on its facts, Roberts J. provided an overview to the admissibility of such evidence: at paras. 83-84:
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.
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 CanLII 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.
[44] In summing up, Roberts J. held that unlike the difficulties related to accurate identification evidence which do fall within jurors’ common experience, “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”: at para. 95. The expert evidence ultimately met the necessity criteria in that case.
[45] For this specific case, I am guided by the principles from the Supreme Court of Canada’s decision on this very case in R. v. Khill, 2021 SCC 37.
[46] At paras. 63 and 64, Martin J. for the majority stated:
The transition to “reasonableness” under s. 34(1)(c) illustrates the new scheme’s orientation towards broad and flexible language. While later judicial interpretations of the old law treated the words “no more force than is necessary” as akin to “reasonableness” (R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at paras. 25 and 37;…
Through s. 34(2), Parliament has also expressly structured how a decision maker ought to determine whether an act of self-defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to “the relevant circumstances of the person, the other parties and the act”. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused – including size, age, gender and physical capabilities (s. 34(2)(e). Also added into the equation are certain experiences of the accused…
[47] At paras. 84 and 85, Martin J. goes on to state:
Just as “role in the incident” may cover an expansive time frame, it also has the potential to sweep up a wide range of conduct during that time frame. The dictionary definition of “role” refers to “a function or part performed especially in a particular operation or process” (Merriam-Webster’s Collegiate Dictionary (11th ed. 2003), at p. 1079). The notion of an accused’s “role” reflects a contribution towards something, without necessarily suggesting full responsibility or fault. Parliament has selected a phrase at a high level of abstraction, creating a single capacious category to cover the widest possible range of circumstances. As indicated by the wording, the question under s. 34(2)(c) is what kind of role the accused played in the sequence of events leading to the subject matter of the charge. The phrase “role in the incident” includes acts and omissions, decisions taken and rejected and alternative courses of action which may not have been considered. It captures the full range of human conduct: from the Good Samaritan and the innocent victim of an unprovoked assault, to the initial and persistent aggressor, and everything in between (see, e.g., R. v. Lessard, 2018 QCCM 249). Thus “role in the incident” encompasses not only provocative or unlawful conduct, but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds. As the Crown submits, this does not mean that the reasonableness assessment is “unbounded” or overly subjective. The inquiry is broad, not vague.
The analytical purpose of considering the person’s “role in the incident” is its relevance to the reasonableness assessment where there is something about what the accused did or did not do which led to a situation where they felt the need to resort to an otherwise unlawful act to defend themselves. Only a full review of the sequence of events can establish the role the accused has played to create, cause or contribute to the incident or crisis.
[48] Of import to trial judges is the direction provided at para. 105:
…In such cases, which lie far from the core of justification, the widest possible review of the accused’s conduct and contribution to the ultimate confrontation is required.
An accused who played a pro-social role throughout the incident would increase their chances of justifying or excusing their act in the eyes of society. By contrast, society is more likely to view the accused’s ultimate act as wrongful or inexcusable where their conduct was rash, reckless, negligent or unreasonable. This is particularly critical in the instance of the putative defender who acts on mistaken belief, and whose actions cannot be said to be morally “right”.
..In assessing the overall lawfulness of the act, the trier of fact must weigh the risks they took, and steps that could have been taken to properly ascertain the threat, against objective community standards of reasonableness (Fehr, at pp. 113-14; Muñoz Conde, at p. 592).
[49] Finally, at para. 124, Martin J. sums up the scope of the review of the “person’s role in the incident” within the reasonableness assessment as follows:
The phrase enacted is broad and neutral and refers to conduct of the person, such as actions, omissions and exercises of judgment in the course of the incident, from beginning to end, that is relevant to whether the act underlying the charge was reasonable — in other words, that, as a matter of logic and common sense, could tend to make the accused’s act more or less reasonable in the circumstances. The conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. This includes, but is not limited to, any behaviour that created, caused or contributed to the confrontation. It also includes conduct that would qualify under previous concepts like provocation or unlawfulness, but is not limited to or circumscribed by them. It therefore applies to all relevant conduct whether lawful or unlawful, provocative or non provocative, blameworthy or non blameworthy, and whether minimally responsive or excessive. In this way the accused act considered in its full context and in light of the “equities of the situation” is measured against community standards not against the accused’s own peculiar moral code” (Paciocco (2014) at p. 29; Phillips, at para. 98).
[50] The court determined, at para. 83, that the assessment engages a “broad temporal frame allowing the trier of fact to consider the full context of the accused’s actions in a holistic manner” and that “Parliament made a choice not to repeat the freeze-frame analysis encouraged by such concepts as provocation and unlawful assault.”
[51] In my review of the underlying decision, and with other authorities, including the Mohan and Abbey criteria, it sems to me that the Supreme Court’s refreshed approach to the s. 34(1)(c) analysis allows the door to be opened to the admissibility of such evidence in order for the jury to appreciate fully the role of the accused in the incident. Further, it tends to allow the jury to consider the reasonableness of the accused’s conduct in its full context and in light of the “equities of the situation”.
[52] It is true that Dr. Collins has never interviewed the accused. I accept that Dr. Collins would have to completely divorce from his opinion any aspect of his knowledge of the facts of this case. That would leave his opinion, other than the issue of the continuance of the accused’s military training, as nothing more than a very detailed and generic medical explanation of the physiology of stress and fear in relation to military training. However, I am not persuaded that the evidence is merely oath-helping or being adduced solely for the purpose of bolstering the accused’s credibility.
[53] Given the holistic direction from the Supreme Court of Canada in Khill, I am persuaded that the jury does require some expert opinion from Dr. Collins on these specific points.
[54] The Crown also argues that the prejudicial effect outweighs the probative value of the impugned evidence. In considering the overall cost-benefit analysis, I am not so convinced. While a redacted or “pared-down” version of Dr. Collins’ 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.
[55] The benefit side of the analysis addresses issues relating to its probative value. This includes an assessment of 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. 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, at para. 90.
[56] Overall, in my opinion, the proposed evidence will take very little trial time and will not confuse the jury. Dr. Collins is fully cognizant of his role as an expert and in providing an opinion to the jury. In any event, the Crown is at liberty to challenge the expert witness in cross-examination.
[57] I agree with the Crown that some of the proposed opinion is well within the knowledge of the common juror. For example, question one regarding the neurobiological responses that go on in the brain when faced with a significant danger or threat is dressed up in scientific language. The jury does not need to have the psychological or neurobiological basis for that assessment. As I pare down the opinion, Dr. Collins will not be able to opine on the ultimate issues for the jury. Nor will any evidence be adduced solely designed to buttress the credibility of the accused.
Conclusion:
[58] Dr. Collins is fully qualified by virtue of his extensive training and in-depth experience and can provide his opinion in specific areas sought to be introduced by the defence. I am persuaded that Dr. Collins’ opinion will assist with the jury’s determination of the core issue of the reasonableness of the accused’s conduct in relation to the criteria in s. 34(2) of the Criminal Code and the direction provided by the Supreme Court of Canada in Khill. In this case, the requisite Mohan and Abbey threshold admissibility requirements for the introduction of expert opinion on these specific issues have been established.
[59] I am satisfied that with certain redactions and limitations in the scope of the opinion, in the overall cost benefit analysis, the probative value of this expert’s evidence is not outweighed by its prejudice. These redactions have been distributed to the parties and will form the basis for the expert’s testimony.
[60] The application to admit Dr. Collins’ expert opinion is granted.
A.J. Goodman J.
Date: December 14, 2022
APPENDIX
Page 1, at para. 1: In the first line, the word “Crown” was removed and replaced with the word “defence”
COURT FILE NO.: CR 17-69
DATE: 2022-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
- and -
PETER KHILL
AMENDED
RULING ON ADMISSIBILTY OF DR. COLLINS EXPERT OPINION EVIDENCE
A. J. Goodman J.
Released: December 14, 2022