BARRIE COURT FILE NO.: CR-23-012 DATE: 20240417

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING, Respondent – and – D.A., Applicant

Counsel: Elizabeth Stokes, for the Crown Kevin Kaczmara, for the Applicant

HEARD: April 8, 2024

REASONS FOR DECISION ON VOIR DIRE

ADMISSIBILITY OF EXPERT OPINION EVIDENCE

Healey, J.:

Nature of the Application

[1] The Applicant is charged with historical sexual offences against M.H., alleged to have occurred between January 1, 2015 and December 31, 2017, when M.H. was 4 or 5 years old. The trial is scheduled to proceed before a jury beginning on April 22, 2024.

[2] The Applicant seeks an order permitting Dr. Tim Moore to provide expert opinion evidence in areas related to the psychology of children’s memory at his trial. Specifically, he asks that Dr. Moore be permitted to explain to the jury concepts such as “imagination inflation”, “source amnesia”, the “reciprocity norm” and to discuss the types of factors that may increase the likelihood of illusory memories being formed. Specific to this case, it is proposed that he outline for the jury how omissions and commissions that occurred during the gathering of information from the complainant have deviated from best practices for interviewing children, and how those process errors may have impacted on the reliability of the information that M.H. is expected to convey during the trial.

[3] Dr. Moore authored a report dated January 29, 2024, after reviewing the videotapes and transcripts of two interviews given by M.H. to the police, and the preliminary hearing transcripts. Although the Crown anticipated arguing an application to admit the video-recorded statements pursuant to s. 715.1 of the Criminal Code, that application has been abandoned. While this raises questions about whether the defence would be able to elicit the foundational evidence for Dr. Moore’s opinion without the video-recorded statements being admissible, for the purpose of this ruling I am putting that issue aside.

[4] Dr. Moore’s proposed evidence was reviewed during a voir dire. In a nutshell, it is proposed that Dr. Moore testify before a jury to the following:

(a) Children are vulnerable to suggestion, manipulation, coercion and social pressure, and so the way in which allegations of sexual abuse are investigated is important.

(b) How it may be possible that M.H.’s memories could be constructs not grounded in reality, although he may subjectively believe them to be true due to the mechanisms of imagination inflation and/or source amnesia. Although Dr. Moore referred to the product as being an “illusory memory”, my understanding of his evidence is that that is simply another term for a false memory.

(c) The potential significance of M.H.’s aunt being the first to name the Applicant as the perpetrator when M.H. made his initial disclosure to her.

(d) The potential significance of the interviewing officers omitting to obtain M.H.’s promise to tell the truth at the beginning of each interview.

(e) The potential significance of having M.H.’s aunt in the interview room for part of the first interview, especially since it was she who first explicitly asked M.H. if the Applicant was the perpetrator.

(f) The potential significance of M.H.’s aunt urging him to answer more of the officer’s questions, with a promise of ice-cream if he complied.

(g) The importance of asking open-ended questions.

(h) The potential effects of the police having “thrown a birthday party” for M.H. between the first and second interview.

(i) The potential significance of the police telling M.H. that the Applicant was a “bad guy”.

[5] In his concluding paragraph, Dr. Moore sets out his opinion as follows:

In my opinion, the cumulative effect of the aforementioned errors of omission and commission reduces the overall value of MH’s statements. The elicitation of a promise to tell the truth was missing from both interviews. The presence (and participation) of MH’s aunt in the first interview was a major breach of protocol, especially since she was the person who explicitly suggested [the accused] as the culprit in the first place. The party held for the complainant by the police and the accompanying demonization of the accused was an ill-advised and significant departure from common practice. In effect, the police have permanently contaminated the integrity of their own witness.

[6] Dr. Moore explained that he was referring to procedural errors in this conclusion, rather than opining on the reliability of the statements given by M.H. However, while he stopped short of saying that these “red flags” affected the reliability of the statements, he agreed that they ultimately could affect the reliability of the information imparted by M.H.

The Law

[7] Expert opinion evidence is presumptively inadmissible. For it to be admitted, the Applicant must satisfy this court that the test for admission of expert evidence from R. v. Abbey, 2009 ONCA 624 (“Abbey”) and White Burgess Langeille Inman v. Abbott and Haliburton Co., 2015 SCC 15 (“White Burgess”) has been met.

[8] First, the four threshold requirements (the “Mohan criteria”) must be satisfied: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert. R. v. Mohan; White Burgess, at para. 19. The Applicant must demonstrate on a balance of probabilities that all these preconditions have been satisfied before the court may proceed to the second step.

[9] At the second step, the court engages in a discretionary gatekeeping exercise which requires the trial judge to balance the potential risks and benefits of admitting the evidence. To be admitted, the proposed opinion evidence must be sufficiently beneficial to the trial process to warrant admission despite the potential harm to the trial process by such admission. White Burgess, at para. 25; Abbey, at para. 76.

[10] The requirement of necessity is the main focus on this application. The test for necessity is whether it provides information which is likely to be outside the experience and knowledge of a judge and jury. Evidence that is only “helpful” to the trier of fact is not sufficient to meet this test. Mohan, at para. 22.

Positions of the Parties

[11] Mr. Kaczmara submitted that the opinions of Dr. Moore are necessary because the jury needs to appreciate why M.H.’s recollections and the information that he conveyed to the police may be sincerely remembered by M.H. yet be the product of a psychological mechanism like imagination inflation. The jury needs to understand how frailties in the interview process of M.H. could have contributed to false memories being created, or to his evidence otherwise being unreliable.

[12] Mr. Kaczmara argued that an understanding of the presence of false memories and how they are formed is not commonplace. While a judge may be familiar with concepts like problematic interview processes and the suggestibility of child witnesses and impairing the integrity of evidence, jurors are not. The evidence of Dr. Moore is necessary for the jury’s full appreciation of the evidence. The fact that this is a jury trial distinguishes this case from many of the cases relied on by Crown counsel, in which Dr. Moore’s opinion evidence has not been permitted.

[13] Further, Mr. Kaczmara argued that without this evidence, he will have no foundation from which to present an argument to the jury that M.H has false memories about the events on which the charges are based.

[14] The Applicant has provided the court with four precedents in which Dr. Moore was permitted to testify: R. v. J.F., 2015 ONSC 3067, [2015] O.J. No. 2469; R. v. F.C., 2015 ONSC 6428, [2015] O.J. No. 5383; R. v. M.C., 2012 ONSC 868, [2012] O.J. No. 1132 (but for a limited purpose and not his evidence on the effect of leading questions, refreshing a witness’ memory, and the need for the child to understand the duty to tell the truth), rev’d on other grounds, 2014 ONCA 611, [2014] O.J. No. 3959; and R. v. Hawkes, 2017 NSPC 4, [2017] N.S.J. No. 30.

[15] The Crown takes the position that Dr. Moore’s proposed evidence does not meet the threshold test of necessity. None of the other threshold criteria are in dispute.

[16] Crown counsel also submitted that Dr. Moore’s evidence potentially intrudes on the jurors’ role as the sole arbiters of credibility and reliability, as the thrust of his opinion is that M.H.’s evidence has been tainted.

[17] Further, Ms. Stokes submitted that this court should exercise its discretion at the second stage to not allow the opinion evidence, as it will distract and overwhelm the jury, and potentially lead to an expansion of mid-trial motions with respect to the admissibility of parts of M.H.’s interviews.

[18] The Crown has provided several cases in which the Ontario Court of Appeal has upheld the trial judge’s decision not to admit Dr. Moore’s evidence in the same or similar areas proposed by the Applicant: R. v. T.C., [2004] O.J. No. 4077 (Ont. C.A.); R. v. V.G., 2007 ONCA 522, [2007] O.J. No. 2650; R. v. T.H., 2017 ONCA 485, [2017] O.J. No. 3036; R. v. R.D., 2019 ONCA 132, [2019] O.J. No. 887, affirming 2017 ONSC 2245; R. v. Jones, 2020 ONCA 15, [2019] O.J. No 6684, affirming 2017 ONSC 7442.

[19] In addition, the Crown has provided five other decisions from the Superior Court of Justice in which Dr. Moore testimony was not permitted: R. v. S.W.S., [2005] O.J. No. 5118 (Ont. S.C.J.); R. v. M.U., [2005] O.J. No. 4590 (Ont. S.C.J.); R. v. Sikorski, 2013 ONSC 5471, [2013] O.J. No. 5936; R. v. Morgan, 2013 ONSC 6462, [2013] O.J. No. 5827; and R. v. B.W.W., [2017] O.J. No. 655, 2017 ONSC 985.

Analysis

[20] I will first deal with the defence submission that jurors should be differentiated from judges when it comes to their ability to make appropriate findings in the face of evidence that can cast doubt on the veracity and reliability of a witness’ testimony.

[21] There is nothing in the case law to support such a proposition. In fact, T.H. arose in the context of a jury trial and the trial judge’s decision to exclude Dr. Moore’s evidence was upheld on appeal. In T.H. the defence proposed to have Dr. Moore testify about whether it was possible for a child to have imagined abuse and incorporated such imagined images into auto-biographical memory and then to develop a subjective belief in their authenticity, as is proposed in this case. The trial judge found that the proposed expert evidence did not meet the necessity component of the test for admission because the evidence “while being no more than helpful in alerting the jury to the vagaries of memory and the care with which they should approach the testimony of the child complainant, could potentially distract jurors from their task and distort the fact finding process.” T.H. at para. 28.

[22] In R. v. B.W.W., at para. 24, Fairburn J. (as she then was) stated “I find that what Dr. Moore has maintained in his report, and testified to on the voir dire in this trial, is well within the experience of judges and, in fact, all triers of fact.”

[23] Similarly, in Sikorski, at para. 17, Nordheimer J. stated:

The issue of memory, in this context, is not outside the experience of a judge or jury. As individuals we are confronted with the failures of memories, both our own and others, on a constant basis. From an early age, we become familiar with failed memories, inaccurate memories and unreliable memories. An expert is not required to explain the reality of those conditions or the caution that anyone should adopt when deciding whether to accept events recounted by a witness, especially many years after those events occurred.

[24] Rather than suggesting a more relaxed approach to necessity in jury trials, the caution from Abbey is to the contrary Abbey, at para. 71:

Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently, expert opinion evidence is presumptively inadmissible.

[25] In sum, I find that there is no support for the defence submission that jurors have a heightened need for expert evidence about the potential existence of false or unreliable memories such as that proposed to be provided by Dr. Moore.

[26] As has been noted about Dr. Moore’s testimony in other cases, much of it is self-evident. At its core it encompasses experiences that are part of the everyday human experience – suggestions make us remember things differently, and the more often those suggestions are repeated, the more likely the memory is to be thought of as real, that memories change over time, that events can be remembered inaccurately, that children often try to please adults or succumb to pressure or reward, especially from those in authority like family members, and that when someone does something nice for us, we feel beholden or are motivated to return the kindness.

[27] We ask that jurors bring their common sense and experience to the task of assessing the evidence of witnesses in a trial. Jurors are well equipped through life experience to evaluate whether they should attach significance to any of the “red flags” identified by Dr. Moore.

[28] Three points were emphasized by the defence and in Dr. Moore’s testimony as being unique features of the case that heighten the need for expert evidence. The first was the idea of the police giving M.H. a birthday party. This event occurred between the first interview by DC Lafferty of the Nottawasaga OPP on April 21, 2021, and the second police interview conducted by DC Murray of the South Simcoe Police Service on June 6, 2021. As was revealed during the questioning of Dr. Moore, the anticipated evidence from the Crown is that this investigation was handed off to the South Simcoe Police Service after the first interview. A few days before his first interview, M.H. had been apprehended from his mother’s care under unfortunate circumstances, without belongings or clean clothes, prompting the Nottawasaga OPP to fund-raise to provide him with some money, food and a few gifts. These were brought to his grandfather’s home by one officer and explained that they were being provided because he had not had a birthday celebration at his last birthday. While Dr. Moore had no doubt that this was well-intended, he found it highly unusual that the police would associate with a witness in an ongoing investigation in this manner.

[29] Dr. Moore explained how the “reciprocity norm”, which is the power of gifts or favours to influence cooperation, explains why these actions by the police could have had an influence on M.H.’s willingness to provide them with negative information about the Applicant.

[30] Again, it is well within the ability of jurors to assess whether these gifts had any impact on M.H.’s testimony in this case, and the extent of that influence. The “reciprocity norm” is simply, as I have already stated, the idea that when someone does something nice for us, it may be human nature to feel beholden or be motivated to return the kindness. While it may be interesting that this has been studied, it is not something requiring expert evidence.

[31] The other unique feature identified was M.H. being told that the Applicant is a “bad guy”. In the same way, jurors can weigh the extent to which this may affect M.H.’s testimony. There is nothing about the psychological concepts that Dr. Moore discusses that is necessary for this evaluation.

[32] The final unique feature was M.H.’s aunt being allowed in the interview room during this first interview, which Dr. Moore described as a breach of the best practices protocol that provides guidance about how to interview child witnesses. There was some speculation in Dr. Moore’s testimony that non-verbal cues could have been given to M.H. by his aunt because they were in close proximity, although there is no evidence of this. Dr. Moore agreed that after she entered the room, she did not speak substantively about the allegations nor tell M.H. how to answer questions. She did encourage him to continue to answer questions even though he expressed that he did not want to and said “and then I’ll tell grandpa to get you some Dairy Queen”. In Dr. Moore’s view, her presence was particularly problematic because she was the family member who first asked M.H. whether the Applicant was the alleged perpetrator, rather than M.H. naming him independently.

[33] Again, there is nothing about this fact scenario that requires the help of an expert in the field of cognitive psychology. Whether M.H.’s recollections have been affected by his aunt’s interventions both inside and outside the interview room is not a unique feature, as juries are regularly faced with fact finding that requires them to consider the independence of a witness’ memory and influences that may have impacted it.

[34] Otherwise, I agree with the conclusions of many of my colleagues in the cases cited by the Crown that Dr. Moore’s evidence is not necessary to assist the trier of fact, in this case jurors, who will be able to form their own conclusions about the probative value of all of the “errors of omission and commission” identified in his report.

[35] While I appreciate that there is precedent for coming to a different view, in none of the cases provided by the defence did the court, in analyzing the necessity requirement, refer to the cases that were then available from the Court of Appeal, such as T.C. and V.G. Both concluded that Dr. Moore’s proposed testimony was within the experience or knowledge of the trier of fact.

[36] In M.C., the defence was permitted to adduce Dr. Moore’s testimony with respect to his opinion on the effect of delayed or incremental disclosure in sexually abused children, which is not something about which it is proposed that he speak about at this trial. As noted earlier in these reasons, Thorburn J. ruled areas of his testimony to be inadmissible – the effect of the manner of questioning and the importance to tell the truth – as they were subject areas that judges deal with regularly.

[37] With respect to Mr. Kaczmara’s argument that he will be unable to argue that M.H. is recollecting false memories if Dr. Moore’s opinion evidence is inadmissible, that is not the test for admission. However, I disagree that this argument will be foreclosed to him without Dr. Moore’s expert evidence on the concepts of imagination inflation and source amnesia. These psychological terms are just scientific terminology for the idea that individuals can conflate imagined events with real ones, that one’s memory can, in effect, “play tricks” in certain circumstances. Mr. Kaczmara can point to any of the same circumstances discussed by Dr. Moore to present this argument in closing provided that the evidence is established during the trial.

[38] Accordingly, the necessity criterion has not been established.

[39] The other reason why this evidence should not be adduced is that the ultimate conclusion as to the credibility of a witness and the reliability of their evidence is for the trier of fact, and not an expert. R. v. Marquard (1993), 85 C.C.C. (3d) 193, at p. 228; R.D., at para. 3. When asked whether he could give an opinion in this case without opining on the ultimate issue, Dr. Moore’s response was “I’d certainly try”. When asked whether he could talk about things relevant to credibility without talking about credibility, his response was “I think I could”. I have no doubt that Dr. Moore would do his best to avoid entering into the jury’s sphere of decision-making, but also understand why his responses were far from certain. The entire thrust of Dr. Moore’s opinion is aimed at explaining why M.H.’s evidence may be unreliable and why it may be problematic to reach the conclusion that he is credible. The very nature of this area of opinion is the reliability of historic memories, and so it may be next to impossible for Dr. Moore to avoid an assessment of M.H.’s evidence, especially when discussing the various process errors identified in his report.

[40] For these reasons, the application was dismissed by oral ruling previously delivered.

Madam Justice S.E. Healey

Released: April 17, 2024