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 Kally Ho for the accused
HEARD: January 20, 2022
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.
1Prior to jury selection, defence counsel put the Crown and the Court on notice that they objected to the admissibility of portions of MB's evidence as evidence of other sexual activity, and extrinsic misconduct or bad character. Defence counsel also renewed its application for severance on the basis of a material change of circumstance. Finally, defence counsel objected that the power point presentation the Crown planned to use to lead Dr. Haskell's evidence was unfair and contained inadmissible evidence.
2The Crown responded to the applications, including by bringing a Seaboyer application to lead evidence of other sexual activity from both complainants (MB and JB).
3For my part, I asked both counsel for their help in drafting an anti-myth and stereotype instruction to give the petit jury at the beginning of the trial.
The admissibility of MB's evidence about sexual communications with Jacob Hoggard
4The record for the original severance application included the statements of both complainants, and their evidence at the preliminary inquiry. I read all this material carefully and summarized it in some detail in my severance ruling (see R. v. Hoggard, 2020 ONSC 5588 paras. 7-14 for a of summary of MB's anticipated evidence and paras.15-19 for a summary of JB's anticipated evidence). I took particular care with this evidence because I wanted to be sure I understood, and properly assessed, the prejudicial effect of having MB's allegations heard together with JB's allegations. I also needed to understand the anticipated evidence of the complainants to accurately assess the viability of the proposed similar fact application. I will not repeat my summary of the anticipated evidence here, rather I refer back to my reasons on the original severance application.
5At the original severance application, defence counsel took the position that all of MB's interactions with Jacob Hoggard leading up to the alleged sexual assault were admissible (see para.3 of the severance ruling). This position lay at the foundation of the defence argument that severance was required. New defence counsel now objects that two aspects of MB's evidence are presumptively inadmissible in so far as they contain bad character or extrinsic misconduct on the part of Mr. Hoggard, and/or other sexual activity, specifically:
Evidence of 'grooming' behaviour: text and Snapchat communications in which Mr. Hoggard cultivated a trusting romantic relationship, including telling MB he loved her and wanted a future with her, and wanted to have sex with her.
Evidence of uncharged sexual crimes: including the exchange of nude photographs, comments by Mr. Hoggard that he wanted to have sex with MB, and would wait until MB was 18 years old.
6Defence counsel argues that the balance of MB's evidence is sufficient to explain how MB arrived at Mr. Hoggard's hotel room where the sexual assault is alleged to have occurred. The impugned portions are not necessary to the narrative, and their prejudicial effect exceeds their probative value. They should not be admitted. Alternately, steps should be taken to minimize prejudice, such as limiting MB's evidence about her interactions with Mr. Hoggard to what happened after she turned 16.
7Defence counsel takes no issue with the introduction of JB's extrinsic sexual activity evidence, provided the defence can cross-examine JB on any Crown led evidence of other sexual activity.
8The Crown takes the position that the interactions of both complainants with Mr. Hoggard leading up to their allegations of sexual assault, including sexual communications amounting to other sexual activity, are essential to the narrative, necessary to properly understand and analyze each complainant's allegations. The Crown also argues that the interactions are necessary to fully and fairly assess the similar fact application. In the event I am inclined to disallow the impugned portions of evidence, however, the Crown urges that only the most prejudicial evidence - Mr. Hoggard asking for and receiving nude photographs of MB - should be excluded.
9The Crown confirms that defence counsel can cross-examine both complainants on any Crown led other sexual activity evidence without the need to bring a separate s.276 application. The Crown also confirms that Mr. Hoggard may testify about the same category of other sexual activity led by the Crown without bringing a separate s.276 application. I agree with this position.
The law
10I set out the framework for analyzing evidence of extrinsic misconduct in my earlier decision, R. v. Hoggard, 2021 ONSC 5365 at paras.23-25, which relies heavily on the recent summary in R. v. ZWC, 2021 ONCA 116. I rely on that framework. In a nutshell, evidence of extrinsic misconduct is inadmissible unless the Crown can show that the extrinsic misconduct 1) is relevant and material; 2) its probative value exceeds its prejudicial effect. This is a highly contextual inquiry. Probative value depends on the circumstances, including the issue the evidence relates to, the chain of reasoning involved, and the extent to which the evidence supports the inferences sought to be made. Prejudicial effect encompasses moral (general propensity and/or bad personhood) and reasoning prejudice, as described in my earlier ruling; it too turns on the circumstances of the case.
11Section 276 of the Criminal Code provides that evidence of sexual activity, broadly defined to include communications, outside the conduct that forms the subject matter of the offence, is inadmissible to support the twin myths (a sexually experienced female is more likely to consent to sexual activity, and/or is less credible), and only admissible if relevant to an issue at trial, and of significant probative value not substantially outweighed by prejudicial effect. While s.276 applies only to defence led evidence, the Supreme Court has directed that the spirit of the regime, but not necessarily the letter, should apply to all evidence of other sexual activity: R. v. Barton, 2019 SCC 33 at para.80; R. v. Goldfinch, 2019 SCC 38 per Moldaver at para 142. In short, in order to lead evidence of other sexual activity, the Crown must bring a Seaboyer application and establish that the evidence does not invoke twin myth reasoning, is relevant to a material issue, and its probative value exceeds its prejudicial effect.
12Courts have been circumspect about admitting evidence of other sexual activity as broadly relevant to narrative or credibility, requiring specificity about facts or issues that can only be properly understood or assessed if the impugned evidence is admitted: R. v. Goldfinch per Moldaver at paras.95, 104, 123. Justice Moldaver provided an example of what he meant, explaining that the jury may need to understand that Mr. Goldfinch had a prior sexual relationship with the complainant in order to properly understand and evaluate his evidence that he mouthed the words "I'm going to fuck you" to the complainant: Goldfinch, at para.124.
13At the same time, courts have often considered sexual communications leading up to and during an alleged sexual assault as either part of the same transaction, or relevant to understanding the evidence about the allegations: R. v. JH, 2018 ONCA 245 at para.33; R. v. XC, 2020 ONSC 410 at paras.38-39; R. v. MacMillan, 2019 ONSC 6018 at 37.
14Evidence of uncharged disreputable conduct is often admitted in cases involving allegations of physical and/or sexual assault in the course of an ongoing relationship. In R. v. DSF (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 at paras.20-22, for example, Justice O'Connor explained that evidence about the context of the overall relationship enabled the jury to "fairly evaluate the complainant's evidence regarding the specific allegations. Excluding that evidence would have left the jury with an incomplete and possibly misleading impression of the relationship." More recently, in R. v. JH, 2020 ONCA 165 at para.54-55 Justice Watt noted that such evidence has been admitted in relation to the following issues, where its probative value exceeds its potential for prejudice:
i. as part of the narrative of relevant events;
ii. to provide context for other evidence;
iii. to facilitate understanding of the nature of the relationship between the principals;
iv. to demonstrate motive or animus on the part of the accused for committing the offences;
v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and
vi. to rebut a claim of fabrication.
Analysis
15There is no issue that aspects of the impugned portions of MB's evidence fall within the broad definition of other sexual activity. Nor is there any issue that the impugned portions of MB's evidence amount to extrinsic misconduct.
16There is no concern about forbidden twin myth reasoning in this case. Neither counsel will use the evidence in question in this prohibited fashion. I will also instruct the jury that the evidence cannot be used in this fashion.
17The real issue is whether the probative value of the impugned evidence exceeds the potential for prejudice.
18The first step in the analysis is to assess the probative value of the evidence in question (grooming and the conduct potentially amounting to luring and possession of child pornography). This step involves assessing the relevance, materiality and connectedness of the extrinsic misconduct. What issue or issues does the evidence relate to, and what is the chain of reasoning involved? Is the issue material? To what extent does the extrinsic misconduct support the inferences sought? In a nutshell, I must consider what inferences the jury will be asked to draw from the evidence and the extent the evidence tends to permit those inferences. Considering these questions, I believe both areas of extrinsic misconduct have significant probative value.
19First, I am satisfied that all of the communications between Mr. Hoggard and MB leading up to the events giving rise to both her allegations are fundamental to understanding and assessing her evidence about what happened, and how she reacted. In particular, these communications are necessary to understand how she reacted to what she says occurred backstage after the concert (the allegation of sexual interference which Mr. Hoggard denies). They are also necessary to understand her evidence about what she says happened in the bedroom and her reaction (the sexual assault which Mr. Hoggard will testify was consensual). She did not scream or fight or flee. When she finally had access to her telephone, she did not call 911 but instead called a friend to manufacture an excuse to leave. While the jury will hear expert evidence on basic principles related to the neurobiology of trauma, MB's subjective expectations of events, such as the fact that she trusted Mr. Hoggard and was interested in a romantic relationship with him, bear on how she responded, and understanding and evaluating her evidence about that response.
20While defence counsel does not accept MB's anticipated evidence about her interactions with Mr. Hoggard leading up to the allegation, there is nothing inherently implausible or unlikely about MB's version, and it may be accepted by the jury. If it is, it is relevant to understanding her reaction to what she says happened in the hotel room. Indeed, I believe it is essential to fully and fairly assessing MB's evidence about what happened in the hotel room.
21Second, I believe MB's communications with Mr. Hoggard leading up to the sexual assault allegations, including all the details of their sexual communications, and exchange of sexual photographs, are relevant to assessing the Crown's similar fact application. In R. v. LB (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont.C.A.) at paras.37-39, Justice Charron explained that in assessing similarities and differences on a similar fact application, the circumstances surrounding alleged sexual acts may be as important as the nature of the sexual acts themselves:
For example in [R. v. CRB, 1990 142 (SCC), [1990] 1 SCR 717 (SSS) at p.739 ], the similarities that the majority found to be sufficiently compelling essentially related to the context within which the assaults occurred and to what was distinctive about that context:
The fact that in each case the accused established a father-daughter relationship with the girl before the sexual violations began might be argued to go to showing, if not a system or design, a pattern of similar behaviour suggesting that the complainant's story is true.
[Justice Charron then considered an analysis of R. v. Litchfield 1993 44 (SCC), [1993] 4 SCR 333 by Justice Rosenberg which emphasized the importance of considering the circumstances in order to understand the context of alleged offences.] It is therefore important to consider not only the acts themselves but all the circumstances…. [emphasis added]
22In this case, defence counsel takes the position that MB's relationship with Mr. Hoggard was very different from JB's relationship with Mr. Hoggard. However, I believe that the jury could find significant similarities between the two relationships, such as a pattern of electronic flirting which included sexual communications and the exchange of nude photographs. I am told, for example, that Mr. Hoggard also asked for, and received, nude photographs from JB prior to meeting JB in his hotel room.
23Turning to prejudice, the evidence is the same as was before me at the severance application except defence counsel now attaches specific labels to some of the conduct, namely grooming, luring and possession of child pornography, which are highly prejudicial. In addition, defence counsel has elaborated on the defence concern about prejudice, arguing that the impugned evidence gives rise to a specific propensity on the part of Mr. Hoggard to break social norms in pursuit of his own sexual gratification.
24Regarding the highly prejudicial labels, these are not to be used or referred to before the jury. Just as the jury will not be told that MB's young age aggravates the seriousness of her allegations (as discussed in my earlier severance ruling at para.25), the jury will not be told that some of Mr. Hoggard's interactions with MB leading up to her allegations, if true, could themselves attract criminal liability.
25Defence counsel's concern about specific propensity reasoning is well-taken, but I believe it can be overcome in the circumstances of the case with an equally specific instruction not to engage in it. While the bad character or extrinsic misconduct is serious, and should not be minimized, the reality is that it is markedly less serious than what is alleged to have occurred in the hotel rooms. I stand by my conclusion during the original severance application that the extrinsic misconduct pales in comparison to what is alleged to have occurred in the two hotel rooms (repeated vaginal and anal penetration with gratuitous violence and degradation). A propensity to break society's rules in pursuit of sexual pleasure revealed by electronic flirting with a 15 and 16 years old, and exchanging naked photographs, is a long way from violent vaginal and anal rape. What occurred in those two hotel rooms will be the focus of the trial. Even if the specific propensity that defence counsel is concerned about is engaged, I do not believe it will be so strong, so poisonous, that it cannot be overcome by a specific instruction. I will also tell the jury how they can use the evidence. In sum, in the circumstances of this case, I believe an instruction can be effective in checking the danger of improper propensity reasoning.
26I do not accept the argument that introducing the impugned evidence will be time consuming and confusing because defence counsel will need to challenge its veracity. I have every confidence that defence counsel will be able to conduct an extremely effective cross-examination that is clear, focused and professional.
27Finally, I do not believe the evidence about sexual communications between MB and Mr. Hoggard will be distracting to the jury. To the contrary, I believe it would be confusing not to have this evidence. The jury is going to hear about the sexual communications between JB and Mr. Hoggard leading up to the allegations involving JB. To hear nothing about the sexual communications leading up to MB's arrival at Mr. Hoggard's hotel room will be potentially misleading, and would tend to obscure the search for the truth.
28I do not believe it is realistic to limit the prejudice by restricting MB to testifying about sexual communications with Mr. Hoggard which occurred only after she turned 16. I am not sure whether MB would even be able to do this. Accepting she could, however, I believe it would make it very difficult for her to give her account of what happened. More importantly, I believe it is a distinction without a difference. Without any of the above labels of criminal conduct being attached, I do not believe the jury will make a significant distinction between communications which occurred while MB was 15 and communications which occurred after she turned 16. They are both prejudicial to Mr. Hoggard.
29I also do not believe it is appropriate to prevent MB from testifying about the exchange of sexual photographs. This is relevant to the trust she placed in Mr. Hoggard. It is also relevant to assessing the nature of the relationship, and the potential similar fact application. As noted, I understand from the Crown that JB is expected to testify that she also sent Mr. Hoggard nude photographs of herself.
30Notwithstanding this ruling, I believe the Crown can and should take steps to minimize prejudice, by limiting MB's evidence to only what is necessary to explain her understanding of the relationship, and avoiding gratuitous detail wherever possible.
Defence application to re-open the severance ruling
31There is no question that a ruling may be re-considered and varied or revoked where there has been a material change to the circumstances on which it rests: R. v. Adams, 1995 56 (SCC), [1995] 4 SCR 707 per Sopinka at para.29. Indeed, my initial severance ruling explicitly contemplates that the issue of severance may be re-considered in the event of a material change of circumstance. What divides counsel is whether there had been a material change in circumstance.
32Defence counsel assert four changes of circumstance in the defence factum, but focused on the fact that Mr. Hoggard will testify and acknowledge that particular acts described by both complainants were part of his sexual repertoire at the time of the allegations. Defence counsel argues that this removes the viability of the similar fact application, which lies at the heart of the decision to deny severance.
33Specifically, defence counsel notes that Mr. Hoggard intends to testify that he had a single consensual sexual encounter with each complainant that included intercourse. His anticipated evidence is summarized in the defence factum as follows:
Mr. Hoggard arranged for each complainant to visit his hotel room on a day when he was visiting Toronto. This included arranging and paying for their transport. In each case, the purpose was for a sexual encounter. This was a common method by which he arranged sexual encounters when he was touring with Hedley.
Leading up to each encounter, Mr. Hoggard communicated with the complainant through text, phone calls, and Snapchat. As part of these communications, he may have included a video of himself masturbating. Mr. Hoggard often "re-used" explicit videos of himself in text conversations with different prospective sexual partners.
Mr. Hoggard had vaginal intercourse with both complainants. At one point during sex with J.B., Mr. Hoggard and J.B. briefly engaged in anal sex. At one point during sex with M.B., Mr. Hoggard rubbed M.B.'s anus with his fingers.
Mr. Hoggard is interested in the following sexual acts, and may have discussed or initiated them with both complainants:
o The mutual exchange of saliva with sexual partners, including spitting or drooling on each other during kissing or oral sex - colloquially known as "spit play".
o Soft and firm taps to the face during sex - colloquially known as "love tapping". Mr. Hoggard will testify that he enjoys this kink when his partners also derive sexual pleasure from it. Mr. Hoggard enjoys having this act performed on him and doing it to his partners.
o The mutual and consensual use of degrading terms such as "slut" and "whore" during sex.
34Defence counsel argues that this testimony will provide an innocent explanation for conduct which was found to be unlikely and very similar in assessing the viability of the similar fact application. The testimony effectively removes the need for, and viability of, the Crown's cross-count similar fact application, and the essential reason for dismissing the initial severance application.
35The Crown takes the position that there has been no change of circumstance that would justify revisiting the severance ruling.
Analysis
36Defence counsel is right to focus on the potential change brought by Mr. Hoggard's plan to testify. The other changes set out in the defence factum in fact support the severance ruling:
The evidentiary basis for the trial is the same as at the time of the severance application, with the addition of Dr. Haskell's evidence. As noted above, the record on which the severance application was argued, and the ruling based, included the statements by both complainants and their evidence at the preliminary inquiry. I have now confirmed that all the interactions between Mr. Hoggard and both complainants leading up to the allegations of sexual assault are admissible.
At the time the severance ruling was argued and decided, the admissibility of Dr. Haskell's evidence was yet to be determined. Hence it could not and did not play a significant role in the analysis or conclusion (see para.30 of R. v. Hoggard, 2020 ONSC 5588.) The fact that Dr. Haskell's evidence has now been admitted, and relates to both complainants, provides support for hearing the allegations together.
The fact that the re-scheduled trial dates include a week break does not provide a good opportunity for separate trials. Neither two-week chunk is likely to be sufficient for either severed trial. What will overlap between the two trials and will be particularly time consuming remains the same: selecting the jury, including a challenge for cause about publicity; opening instructions to the jury including educating the jurors with anti-myth and stereotype instructions; closing argument; pre-charge conference; charge to the jury, in which the issues will be the same (consent, and possibly the defence of honest by mistaken belief in communicated consent) and the same anti-myth and stereotype education required; finally, deliberation time for each separate jury. Assuming the separate trials can fit within the currently scheduled two two-week blocks, however, it will be difficult to pick the second jury after the publicity the first trial is likely to receive, especially as the anticipated defence is the same.
37The real issue is whether Mr. Hoggard's anticipated testimony does in fact undermine the viability of the similar fact application. If it does, I agree that the severance ruling should be revisited.
38At the time of the severance ruling, defence counsel took the position that Mr. Hoggard may testify in relation to the MB allegations, but not the JB allegations. He did not provide any evidence in support of that position, and I concluded that it lacked an objective basis. Mr. Hoggard now indicates he plans to testify in relation to both sets of allegations. While his anticipated evidence has been carefully summarized, it is not supported by any admissible evidence, such an affidavit on a without prejudice basis (as was done in R. v. Moore, 2015 ONSC 728 at paras. 21, 131-157). There is nothing to protect the Crown or the Court in the event of another change of counsel, or even a change of mind. While defence counsel argues that if Mr. Hoggard changes his mind about testifying, the similar fact application becomes live. But, as the Crown points out and has always maintained, Mr. Hoggard does not have to decide whether or not he will testify until the close of the Crown's case, after a ruling on the admissibility of similar fact evidence.
39Accepting that Mr. Hoggard will testify in accordance with the summary of his evidence set out in the defence factum, I do not believe this evidence undermines the viability of the Crown's anticipated similar fact application.
40The viability of the similar fact application was assessed on the basis that "the similar fact evidence is relevant to establish the actus reus of sexual assault, to rebut a possible defence of honest but mistaken belief in communicated consent, and to support the credibility of the complainants” (severance ruling, R. v. Hoggard, 2020 ONSC 5588 at para.44).
41The defence argument turns on the assumption that particular sexual acts can be parsed from the context in which they occurred, namely whether or not they occurred consensually or non-consensually. This strikes me as opposite to the argument that the defence made in persuading me that the evidence of JMB about consensual sexual urination was not relevant to support JB's testimony about non-consensual sexual urination (see paras. 44-48, 51-55 of R. v. Hoggard, 2021 ONSC 5365). More to the point, however, I do not believe that the evidence can be parsed in this fashion. The actus reus of sexual assault includes both an act of sexual touching and the fact that it occurred without consent. The Supreme Court emphasized the danger of parsing and the importance of looking at all the circumstances surrounding allegations of sexual assault in R. v. Litchfield, 1993 44 (SCC), [1993] 4 SCR 333 at paras.14, 36-39. In short, what gives the potential similar fact application relevance is not simply that the complainants describe similar sexual acts, but that they describe those sexual acts occurring without consent. This is unchanged by Mr. Hoggard's anticipated evidence.
42A significant part of what gives the potential similar fact application its probative value, or cogency, is the improbability of coincidence or other innocent explanation for the similarities between the complainants' allegations. The fact that Mr. Hoggard plans to testify that the particular acts which both complainants describe fell within his sexual repertoire or preferences at the time does not undermine the improbability of coincidence. Both complainants gave their statements about their allegations without knowing anything about what the other would say, or how Mr. Hoggard would respond. Ultimately, it will be for the jury to find the facts. But I believe that the potential probative value of the potential similar fact application is also unchanged by Mr. Hoggard's anticipated evidence.
43In sum, the circumstances underlying the severance ruling remain largely the same. If anything, what changes have occurred support the conclusion to try the allegations of both complainants together.
The admissibility of the PowerPoint the Crown plans to use when leading Dr. Haskell
44I previously ruled that the Crown could call Dr. Lori Haskell to provide expert evidence about the neurobiology of trauma (see R. v. Hoggard, 2021 ONSC 5365 at paras.62-112). In a nutshell, I concluded that Dr. Haskell should be permitted to educate the jury about "well-accepted phenomena associated with the brain and body's response to stress and trauma". She could also inform the jury that sexual assault may be a stressful or traumatic event, a common sense proposition so well-accepted it is in the DSM-5. However, she could not testify about aspects of neurobiology where there is controversy. Nor could she apply principles drawn from the field of neurobiology to her experience working with sexual assault survivors, i.e. directly link the lessons of neurobiology to the context to sexual assault
45Among other things, Dr. Haskell is a teacher. That is her role in this trial. Like many teachers in our age of technology, she proposes to communicate her lesson with the assistance of a PowerPoint presentation.
46Defence counsel initially objected to the use of a PowerPoint as unnecessary, and potentially unfair in so far as it could place undue emphasis on Dr. Haskell's evidence. During oral submissions, however, defence counsel accepted that a PowerPoint could be a useful way of ensuring that Dr. Haskell stays within the bounds of what has been permitted. Defence counsel's focus was on particular slides being out of bounds, or prejudicial.
47The Crown acknowledged that some slides and information should be removed, but the balance was in bounds and fair. Putting the information in PowerPoint would help structure Dr. Haskell's evidence, and help the jury understand and absorb the lesson.
The relevant legal principles
48Demonstrative aids are intended to organize and streamline the presentation of voluminous or complex evidence in order to help the trier of fact understand it. They are not meant to be advocacy tools, or a means to further the position of one party: R. v. Scheel (1978), 1978 2414 (ON CA), 42 C.C.C. (2d) 31; R. v. Kanagasivam, 2016 ONSC 2250.
49Where expert evidence is admitted to explain concepts a trier of fact needs to know in order to understand or properly assess particular evidence, a PowerPoint may help the expert communicate. As Justice Heeney explained in R. v. Sandham, 2009 58982 (ON SC), [2009] OJ 4517 at paras. 15, 18, 22:
It has become customary in criminal trials for an expert witness to begin his or her evidence with a presentation to the jury about the background science. We referred to these in argument as "Blood Spatter 101" or "DNA 101", which accurately reflects the idea that these presentations are, in fact, mini-lectures to the jury to educate them on the science that they need to know in order to understand and assess the evidence that is to follow. Such presentations routinely utilize Power Point, and include photographs, charts, graphs, and slides with text that emphasize key points in the lecture.
[Experts] must, of necessity, perform an educative function for the jury. The reason for this is that expert evidence is, by its very nature, outside the knowledge of the trier of fact. The jury needs to be educated in order to understand this type of evidence. It goes without saying that it is in the interests of all parties, and in the interests of justice, that the jury fully understand all of the evidence that is presented to it.
Educators have now fully embraced Power Point as an essential tool for the dissemination of information in classes and lectures. It is the norm in virtually any class at university. It is in standard use at almost every seminar and conference. It is so widely used precisely because it works. Displaying on a screen the main elements of the lecture in bullet-point form reinforces comprehension and retention by the audience.
50The admissibility of a demonstrative aid depends on the exercise of judicial discretion balancing probative value against the potential for prejudice. Relevant factors include (drawn mainly from McWilliams Canadian Criminal Evidence, 5th Edition, at para.23:23):
Will the document assist the trier(s) of fact in understanding the primary facts resident in a number of other records or sources of evidence? (R. v. Herntier (2020), 394 C.C.C. (3d) 28 (Man. C.A.))
Is the document based upon admissible facts drawn from the evidence or otherwise available to the parties and the court? (R. v. Pan, 2014 OJ 5969 SCJ)
Is the maker of the document available for cross-examination? (R v. Ajise (2018), 2018 ONCA 494, 361 C.C.C. (3d) 384 at paras. 16-27 (Ont.C.A.); aff'd 371 C.C.C. (3d) 214 (S.C.C.))
Are the contents of the document inadmissible on account of another exclusionary rule (i.e., improper expert evidence)?
Does the document fairly represent the primary facts in terms of the nature and manner of presentation (use of colour, emphasis, font size, graphics, etc.) as well as avoidance of unfair interpretations or misleading or distracting characteristics, or is there an element of unfairness? (R. v. Pan; R. v. Kanagasivam)
Is it fair to communicate an aspect of one witness's testimony in permanent documentary form potentially available in the jury room during deliberations?
Is there a danger that the jury could give the summary or presentation more weight than it deserves? (R. v. Browne, 2017 ONSC 5051)
Are there jury instructions that could appropriately counter any prospective prejudice? (R. v. Kanagasivam at para.42)
Analysis
51Dr. Haskell's evidence is admissible to support the instruction that the jury must not assume that a real victim would behave in certain stereotypical ways by explaining why that may be the case. To the extent that a PowerPoint can help a jury understand and absorb Dr. Haskell's evidence, I believe that is a good thing, which furthers the interests of justice.
52As noted, defence counsel did not press her objection to the PowerPoint format in oral argument, instead acknowledging that it could be a useful tool to keep Dr. Haskell's evidence within the bounds of the admissibility ruling. The real issue is whether the PowerPoint contains information which is out of bounds, or prejudicial.
53Given that the PowerPoint only contains Dr. Haskell's evidence in chief, a copy will not be provided to the jury. We can discuss whether the jury should be told this in advance, so that they can take notes if they want.
54A theme of the defence objections is that Dr. Haskell should not be permitted to link the well-accepted phenomena associated with the brain and body's response to stress and trauma with real life examples of specific behaviour. But the ruling does not limit how Dr. Haskell can explain well-accepted phenomena, only that her evidence must be limited to well-accepted phenomena, and not applied to her experience with sexual assault survivors.
55With that clarification, I will address each objection. The focus of my analysis is whether the information in a slide is uncontroversial, whether it furthers understanding of well-established phenomena associated with the brain and body's response to trauma, and whether it is confusing or potentially prejudicial. The specific objections, and the Crown response, have been summarized in a chart which we made exhibit D. I will not repeat the positions of each side, but rather focus on my response:
Slide 1: Reference to "research consultant" should be removed. Defence counsel also objects to the photograph as inflammatory, misleading, or providing new information. The Crown does not agree. Nor do I, but I also do not think this photograph adds to the presentation. It should be removed.
Slides 3-4: Contains a definition of trauma from the DSM-5, which confirms that sexual violence may be traumatic. This is uncontroversial and the foundation for Dr. Haskell's evidence. It is explicitly contemplated in the admissibility ruling (para.111). It is admissible.
Slide 5: Refers to a study relating to the type of fear experienced during sexual assault. I do not understand how this slide furthers an understanding of well-accepted phenomena associated with the brain and body's response to trauma. It is excluded.
Slide 7: The commentary notes that some of the first studies on the effects of stress on cognition began with the behaviour of pilots in the second world war, who were observed to make mental errors under stress. I believe the example will further the jury's understanding of well-accepted phenomena associated with the brain and body's response to trauma. It is admissible. The reference to the amygdala is accurate and uncontroversial. It is admissible. The citation, however, should be excluded. Both counsel agree that while citations are essential in other contexts, they should not be part of the presentation to the jury. All the citations/references in the PowerPoint should be removed.
Slide 9: Contains a picture. I do not necessarily agree that it is inflammatory or misleading, but I do not see what it adds. It should be removed.
Slide 10: The explanation of what sort of threat can trigger the brain's defence circuitry is helpful and uncontroversial. It is admissible.
Slide 16: Everyone agrees that this picture and slide should be removed. It adds nothing but potential prejudice.
Slide 17: Refers to a factor (dread of harm) which can contribute to dissociation. I do not believe this information assists the jury in understanding well-established phenomena associated with the brain and body's response to trauma. It is excluded.
Slide 21: Refers to the effect of stress chemicals on brain function. Defence objects to the speaking notes which refer to training in high-risk professions to counter the effects of this stress. I believe this information is helpful in furthering the jury's understanding of well-established phenomena associated with the brain and body's response to trauma. However, I would exclude the last phrase: "and clearly this type of training might be relevant to all kinds of decision-making while under threat." That is a matter for the jury.
Slide 22: Contains an image of the brain, highlighting the prefrontal cortex, and noting the areas of thought it controls. I believe this image furthers understanding of well-established phenomena associated with the brain and body's response to trauma. It is admissible.
Slide 24: Contains two images of the brain, summarizing how stress may affect brain state. Again, I believe these images further understanding of well-established phenomena associated with the brain and body's response to trauma. They are admissible.
Slide 25: Describes the stress hormone which impairs prefrontal cortex impairment, and its effect. "Norepinephrine" should be replaced with the more generic description "stress hormone".
Slide 26: Describes a misconception about human behaviour. Everyone agrees this is not for the expert to provide. It is excluded.
Slide 27: Explains that stress hormones flooding the brain can dramatically decrease prefrontal cognitive abilities. The speaking notes provide an example of a woman unlocking a door for her assailant and later being unable to explain why. While no objection is taken to this speaking note, I do not believe it is necessary to explain the point being made in the slide, and it could be prejudicial. I am also concerned it falls out of bounds. The speaking note is excluded.
Slide 28: Explains that the neurological changes caused by stress are the reason why people in high-risk occupations practice emergency procedures. I believe this furthers understanding well-established phenomena associated with the brain and body's response to trauma. It is admissible.
Slide 29: Explains the effect of changes in attentional focus, providing an example from police training in the speaking notes. I believe the example furthers understanding of well-established phenomena associated with the brain and body's response to trauma. It is admissible.
Slide 31: Explains that stress promotes behaviour based on habit, which is the focus of combat training. I believe the information furthers understanding of well-established phenomena associated with the brain and body's response to trauma. It is admissible.
Slide 34: The speaking notes give a couple of examples of "freezing", namely the Paris terrorist attacks and the train in France with the terrorist. I believe the examples further understanding of well-established phenomena associated with the brain and body's response to trauma. They are admissible.
Slide 38: Elaborates on the meaning of dissociation, specifically that it is an alteration of attention and awareness and not a behaviour so it can accompany reflex and habit. I agree with the defence that this elaboration was not in the report or explained during the testimony at the voir dire. It has not been adequately assessed as reliable and I would not admit it.
The anti-myth and stereo-type instruction in the opening instructions to the jury
56There is no issue that the jury must be instructed that there is no inviolable rule about how people who are the victims of trauma like a sexual assault will behave, at the time or after, and there are many possible responses to sexual assault.
57Similarly, there is no real issue that it is appropriate to begin this instruction in the opening to the petit jury at the outset of the trial.
58The issue is how much detail should be provided, including whether the instruction should refer to unconscious bias, and whether the jury should also be instructed not to make assumptions about what sorts of sexual acts someone would consent to.
59I would expand the instruction to include reference to nonconscious bias. I agree with defence counsel that this is probably more relevant and thus more worrisome than conscious bias. I also see no downside to explicitly addressing it.
60I would also expand the instruction to include a caution not to make assumptions about what sorts of sexual acts someone may consent to. I agree with the Crown that the majority of cases address concern about myths and stereotypes injecting false assumptions about how a "real" victim would behave (I described some of this caselaw when explaining why I found it was necessary to admit expert evidence to counter theses myths in R. v. Hoggard, 2021 ONSC 5365 at paras.80-97). However, there is also significant recent case law suggesting myths and stereotypes about female sexual behaviour, and the circumstances in which consent may or may not be given, can also infect the reasoning process: R. v. JL, 2018 ONCA 756 at paras.46-47; R. v. Cepic, 2019 ONCA 541 at para.541; R. v. JC, 2021 ONCA 131 at para.66. The anticipated evidence of Mr. Hoggard that he enjoyed "vigorous and 'non-standard' sexual acts between relative strangers" suggests these latter false assumptions could be engaged in this case. While the Crown caution to wait until there is an actual evidentiary foundation for this concern is well-taken, I am afraid that doing so may lead to an unbalanced charge, especially as the caution about myths operating to the detriment of the Crown will be animated by the evidence of Dr. Haskell.
61Everyone agrees that the jury should be cautioned to carefully reflect on the common sense it applies, and ensure it is based on truly shared norms, or where these do not exist, on evidence. I believe that the expanded instruction cautioning about all kinds of improper myths and stereotypes will accomplish this. But I remain open to correction and suggestion. Here is my latest attempt:
In my opening remarks to the jury panel, I explained the importance of jurors approaching their task with an open mind and deciding cases in an unbiased and impartial manner.
It would be understandable if one or more of you came to this trial with assumptions, conscious or unconscious, as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not commit a sexual assault, what kind of person may or may not be a victim of sexual assault, what a person who is being, or has been, sexually assaulted will do or say, or what kind of sexual acts someone may or may not consent to.
I caution you that experience has shown us that there is no typical victim or typical assailant or typical situation or typical reaction.
There is simply no norm or rule about how a victim of sexual assault will behave during and after a sexual assault against which you can assess the evidence that you hear in this case.
There is similarly no norm or rule about the sorts of sexual acts someone may or may not consent to against which you can assess the evidence that you hear in this case.
I am telling you this not to support a particular conclusion, or to stop you using your common sense.
Your collective common sense will be essential to doing your work in this case.
Rather, I am telling you this so that when you listen to the evidence in this case you can take care not to be influenced by misconceptions which exist about sexual assault.
When you deliberate at the end of the trial, take the time you need to reflect carefully and thoughtfully about the evidence.
Resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, or stereotypes.
Think about why you are making the decision you are making and examine it for any stereotypes or assumptions you may be applying.
Listen to one another. One of the great strengths of our system of trial by jury is that it brings together twelve lay persons who come from different backgrounds and who will view this case in light of their own experiences, insights and assumptions. Listening to different perspectives may help you to better identify any stereotypes or assumptions you may be making, including ones you may not be initially consciously aware of. Help one another to identify and resist the effect of stereotypes or false assumptions.
The conclusions that you reach in this case must be based on the evidence you hear at the trial, considered in light of all of the evidence in the case, and my instructions about the law.
G. ROBERTS J.
RELEASED: February 1, 2022
COURT FILE NO.: CR-19-10000463
DATE: 20220201
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: February 1, 2022