Introduction

[1] The Lam sisters, Chau and Hue Lam, are charged with first-degree murder. This trial commenced on June 9, 2025, before a judge and jury. The Crown and Chau Lam have now both closed their case. Hue Lam will open her case next.

[2] On October 31, 2022, Chau Lam ("Chau") called 911 to report that she and her sister had killed their mother. Following their arrest, both sisters admitted in police interviews that they killed their mother. Both sisters also informed the police that they were physically and verbally abused by their mother. This evidence formed part of the Crown's case. In addition, the jury heard evidence from Chau as well as her brothers, Chanh and Minh Huynh, that their mother verbally and physically abused the sisters while they were growing up in Vietnam and the abuse continued even as adults living in Canada. Chau testified that the abuse escalated after Hue Lam ("Hue") became sick with Parkinson's disease and that Hue was less able to defend herself against their mother's abuse.

[3] Amicus curiae has indicated that Hue will not testify at trial but will tender evidence. In this regard, Hue seeks two admissibility rulings. First, Hue seeks an order to permit her to introduce seven medical records as business records pursuant to s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5 and the common law rule in Ares v. Venner, [1970] S.C.R. 608. The Crown opposes the admissibility of the medical records as business records on the grounds that they contain hearsay statements and medical opinions for which the probative value is outweighed by its prejudicial effect. Furthermore, if the records are admitted, they propose redactions be made to those portions of the records which contain hearsay or opinion evidence.

[4] Second, Hue seeks an order to permit her to introduce expert opinion evidence from Dr. Zeynep Selaman, a forensic psychiatrist. Dr. Selaman was retained by amicus curiae to conduct a psychiatric assessment and to provide a diagnostic impression of Hue. Dr. Selaman concluded in a report dated June 16, 2025, that in the period preceding the offence, Hue was suffering from a "major depressive disorder" with recurrent episodes, which I will refer to as MDD. Hue seeks to have Dr. Selaman opine on her assessment and diagnosis, the root causes for the MDD, and the impact of MDD on Hue's cognition and function. In addition, as set out in further detail below, Hue seeks to have Dr. Selaman opine on the psychiatric impact of long-term abuse on victims generally and on Hue specifically, as well as on various psychiatric terminology related to mental disorders.

[5] Earlier during this trial and following a contested voir dire, I ruled that Dr. Selaman could provide expert opinion evidence on her psychiatric assessment and diagnoses of Chau, to opine on causes and impacts of long-term abuse generally and on Chau specifically, and to explain particular psychiatric terms as they may relate to Chau's mental disorder and the impact of that disorder. Dr. Selaman proceeded to testify before the jury on those issues. My reasons for allowing the expert evidence and the scope and parameters of the expert evidence are set out in R. v. Lam, 2025 ONSC 4113 ("Decision"). To avoid duplication, I have indicated below where I adopt the findings of the Decision.

[6] In addition, the Crown previously raised concerns with the voir dire on the admissibility of Dr. Selaman's psychiatric opinion evidence regarding Hue taking place during Chau's case because the evidentiary record on which Dr. Selaman relied for her opinion on Hue had not been tendered, and it was unclear if it would be tendered. I agreed with the Crown and found for various reasons, including procedural fairness, that the voir dire on the admissibility of Dr. Selaman's expert evidence as it related to Hue should be conducted as a separate voir dire and that the admissibility ruling should be made after a determination on the admissibility of any hospital records amicus curiae sought to introduce. Furthermore, if Dr. Selaman was permitted to testify regarding her opinion of Hue, I ordered that the evidence should be tendered after Hue's case is opened before the jury. The reasons are set out in my oral ruling of July 4, 2025, and I will not repeat them here.

[7] Dr. Selaman's qualifications in general and forensic psychiatry and her specialized knowledge to provide opinions on the proposed topics outlined by amicus curiae are not in dispute. However, the Crown opposes the admissibility of the opinion evidence on some of the same grounds they asserted in opposition of the opinion evidence for Chau: 1) the proposed opinion evidence relates to issues within the scope of a juror's knowledge and consequently, expert evidence is not necessary; 2) the proposed opinion evidence is not relevant to the issues at trial; and 3) the probative value of the evidence is outweighed by its prejudicial effect.

[8] The following decision sets out why: 1) I find that the seven hospital records for Hue are admissible in their entirety as business records; and 2) that Dr. Selaman is qualified to provide expert opinion evidence on her assessment and diagnosis of Hue, how chronic and long-term abuse can impact victims of violence generally and on Hue more specifically, and on the issues and psychiatric concepts referred to in her report and addressed at the voir dire as set out below. The issues, scope, and parameters of her opinion evidence will be the same as for Chau.

Ruling 1: Are the Hospital Records Admissible as Business Records?

[9] Hue seeks to admit the following medical records related to Hue as business records pursuant to s. 30 of the Canada Evidence Act or under the common law:

1. September 11, 2021 – Dr. Barrett, MD, Neurology, Emergency Dept., Ottawa Hospital
2. January 9, 2022 – Dr. Weitzman, MD, Emergency Dept., Ottawa Hospital
3. February 2, 2022 – Dr. Dholakia, Psychiatry, Ottawa General Hospital
4. March 3, 2022 – Dr. Dholakia, Psychiatry, Ottawa General Hospital
5. April 22, 2022 – Dr. Dholakia, Psychiatry, Ottawa General Hospital
6. July 22, 2022 – Dr. Dholakia, Psychiatry, Ottawa General Hospital
7. September 30, 2022 – Dr. Dholakia, Psychiatry, Ottawa General Hospital

[10] Amicus curiae argues that the records are relevant because these are medical records Dr. Selaman specifically relied on from amongst 600 medical records as part of the totality of information she considered in forming her psychiatric opinion of Hue. For example, the records refer to specific symptoms Hue was experiencing in the year before her mother's death, how these symptoms were impacting her, and what she identified as the causes of her illness. The records also refer to an episode of depression in earlier years as well as her attendance to emergency on January 10, 2022, following a suicide attempt – factors which were relevant to Dr. Selaman's opinion that the MDD was with recurrent episodes.

[11] In addition, amicus curiae argues that the records are relevant because they provide observations made by the attending physicians regarding Hue's physical and mental condition in the year preceding the offence, particularly as they relate to neurological disorder we have been referring to as Parkinson's disease. This medical evidence is relevant for the jury's assessment of her illness at the time of the offence and what impacts it had on her cognitively and physically, which is relevant for any considerations of the "reasonableness" of her conduct as it relates to a possible defence of self-defence. For example, amicus curiae highlights that one of the factors under s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46, which sets out a non-exhaustive list of factors to be considered when assessing the reasonableness of an accused's conduct for the defence of self-defence, is a consideration of the physical attributes of the accused and the deceased.

[12] While amicus curiae concedes that there are hearsay statements made by Hue and Chau and medical opinions from the attending physicians within the medical records, amicus curiae submits that these statements are not being tendered for the truth of their contents and a direction can be provided to the jury that they may not rely on such evidence for that purpose. In this regard, amicus curiae has set out at Appendix B of the Materials filed in this voir dire (Exhibit 7) a summary of the relevant information being relied on from each medical record, the specific purpose for which the information is being tendered, and where applicable, how it is relevant to Dr. Selaman's expert opinion evidence.

[13] Section 30 of the Canada Evidence Act provides that business records can be admitted in evidence. It states:

Business records to be admitted in evidence

30 (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.

[14] Business records are also admissible under the common law as articulated in Ares v. Venner. Admissibility at common law requires that the record constitute (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent: R. v. Monkhouse, 1987 ABCA 227, at para. 23, citing J.D. Ewart, Documentary Evidence in Canada (Agincourt: Carswell, 1984), at p. 54. See also R. v. Attalla, 2015 ONSC 7556, at para. 30; R. v. Kennedy, 2019 ONSC 3303, at para. 48; McCabe v. Roman Catholic Episcopal Corporation, 2019 ONCA 213, 146 O.R. (3d) 607, at para. 23; R. v. Wentworth, 2022 ONSC 5319, at para. 159.

[15] There is ample authority for the admissibility of medical and hospital records as business records beginning with the seminal decision in Ares v. Venner. In that case, the Supreme Court of Canada found that hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the record, should be received in evidence as prima facie proof of the facts stated therein: at p. 626. Other examples include:

a. In R. v. Smith, 2011 ABCA 136, 510 A.R. 37, the Court of Appeal of Alberta admitted a toxicology report prepared in a hospital that specified the accused's blood alcohol level.

b. In R. v. Saghier, 2017 ONSC 227, Garson J. found that the trial judge did not err in allowing the Crown to admit the evidence of hospital records as business records in accordance with s. 30 of the Canada Evidence Act: at paras. 30-33.

c. In Barry v. His Majesty the King in Right of Ontario, 2023 ONSC 4299, Ryan Bell J. found that hospital records were business records: at paras. 50-55, citing Michelle Fuerst, Hamish C. Stewart, Sidney N. Lederman, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022).

d. In Parliament et al v. Conley and Park, 2019 ONSC 2951, Woodley J. noted that in addition to any common law exception, business records which include medical records, are expressly admissible pursuant to s. 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23: at para. 30.

e. In K.K. v. M.M., 2021 ONSC 3975, Petersen J. held that hospitalization records, records from family physicians and notes from psychiatrists were admissible under the business records exception set out in the Ontario Evidence Act, and delineated the purposes for which the evidence was admissible.

[16] In this case, the medical records are accompanied by affidavits from Gordon Laing and Rob Rattray, employees at the Ottawa Hospital, attesting that the records are true copies of the medical records stored at the Ottawa Hospital, that they were produced in the ordinary course of business, that they were prepared contemporaneously to the medical treatment, and that they are relied upon as medical records of patients. In addition, amicus curiae provided notice to the Crown that it intended to introduce such records as legislatively required.

[17] The Crown does not dispute that the above-noted criteria for the admissibility of business records under s. 30 of the Canada Evidence Act and the common law rule have been met. However, the Crown argues that the records should nonetheless be excluded or redacted because they contain hearsay statements and medical opinions that are prejudicial and may be relied on by the jury for the truth of their contents. The Crown argues that in determining the admissibility of business records, a trial judge retains a residual discretion to exclude or redact portions of the records where the probative value of the content in the records is outweighed by its prejudicial effect. While the Crown recognizes that concerns about what use the jury may make of the evidence contained within the medical records is commonly addressed by a direction to the jury (e.g., an instruction that the jury cannot rely on any hearsay statements within the medical records for the truth of their contents but only as the basis upon which Dr. Selaman formed her opinion), the Crown argues that such a jury instruction is insufficient to cure the potential prejudice in this case, warranting exclusion or redaction of the medical records.

[18] There is authority for the Crown's proposition that even where the criteria for admissibility of a business record has been met legislatively and under the common law, the trial judge has residual discretion to exclude the evidence if the probative value is outweighed by its prejudicial effect. This residual discretion was exercised by Barnes J. in R. v. Bryan, 2017 ONSC 2267 in the context of an application by the Crown to file a passport application as a business record pursuant to s. 30 of the Canada Evidence Act. There were issues about whether proper notice had been given. Moreover, in that case, defence argued that admission of the record would be prejudicial to the defence because had they known of its introduction, they would have hired a handwriting expert to assess the passport application and prepared the defence another way. Justice Barnes found that there were concerns about the reliability of the record and that the record sought to be admitted involved a co-accused who had been sentenced favorably as a result of her cooperation. Ultimately, Barnes J. excluded the document on the basis of prejudice stating as follows at paras. 32-34:

[32] Once the Crown has met the formal requirements under s. 30 of the Act, the records are admissible as business records as prima facie proof of the truth of their contents: R. v. Smith, 2011 ABCA 136, 510 A.R. 37, at para. 46. There records will confirm the evidence of Ms. McGrath on the passport application issue. Therein lies the prejudice to the defence. The certified copy of the passport application should not be introduced despite any hearsay exception under statute or common law. I exercise my residual discretion as the trial judge to exclude otherwise admissible evidence where the prejudicial effect of admission outweighs the probative value.

[33] In my view, in the absence of a CEA notice from the Crown, it was reasonable for the defence to anticipate that the Crown was not seeking to bolster the testimony of a Vetrovec witness by admitting the passport application and affidavit under s. 30 of the CEA.

[34] For these reasons, the Crown cannot introduce the certified copy of the passport application (including the affidavit of Susan Ganas) as a statutory exception to the hearsay rule as described in s. 30 of the CEA.

[19] In Parliament et al v. Conley and Park, Woodley J. also referred to a trial judge's residual discretion to exclude evidence in the context of an application to adduce medical records as business records, stating at para. 28:

Where the evidence is admissible under an exception to the hearsay rule or under the principled approach, the judge may still exercise his or her residual discretion to exclude evidence and refuse to admit it if its prejudicial effect outweighs its probative value.

[20] Justice Woodley went on to decline to exercise her residual discretion and allowed the introduction of a doctor's clinical notes and records, notwithstanding that they contained hearsay evidence: at para. 42.

[21] In this case, I decline to exercise my residual discretion to exclude the records in part or whole. I find the probative value of the records is outweighed by the prejudicial effect for the following reasons.

[22] First, amicus curiae has properly delineated the relevance of the records to the opinion evidence to be proffered by Dr. Selaman which in turn, is relevant to issues at trial regarding the motive, intent, planning, and deliberation for the alleged offence as well as a possible defence of self-defence. In addition, Dr. Selaman testified during the voir dire as to the specific passages she relied on in each of the seven medical records which informed her diagnostic impression and opinion evidence as it relates to Hue. Consequently, the records have significant probative value.

[23] Second, the hearsay statements and opinions contained in the medical records are not being tendered for the truth of their contents and any risk of prejudice can be minimized by the usual practice of a proper jury instruction. As I indicated to the Crown, even if Drs. Barrett, Weitzman, and Dholakia came to court to testify and referred in their evidence to hearsay statements made by the Lam sisters during each of Hue's medical visits, I would have to provide the same direction to the jury that such hearsay statements are not admissible for the truth of their contents. Similarly, if they provided medical opinions about Hue for which they should be qualified to give expert opinion evidence, the jury would have to be directed with respect to what weight, if any, could be given to that medical opinion. In other words, the business records exception simply facilitates, for efficiency reasons, the admissibility of the same evidence that could be provided viva voce by the doctors if they were called to testify. This is because the medical records are deemed to be inherently reliable given that they were made contemporaneously to the medical visit and in the usual and ordinary course of business. As explained by the Court of Appeal of Alberta in R. v. Smith, at paras. 15-16:

[15] In effect, s. 30 creates a statutory exception to the rule against the admission of hearsay evidence. This statutory exception is very similar to the common law business records exception. The fundamental principles and intent of both exceptions are the same.

[16] Hospital records have been found to bear this imprimatur of reliability and have previously been admitted into evidence under s. 30 of the CEA: see R. v. Malko (1994), 92 Man. R. (2d) 194 (C.A.); R. v. L.(C.) (1999), 138 C.C.C. (3d) 356, 124 O.A.C. 45 (Ont. C.A.). In Ares v. Venner, [1970] S.C.R. 608, 14 D.L.R. (3d) 4 [cited to S.C.R.], the Supreme Court of Canada held that under the common law business records exception "[h]ospital records... made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein" (626). [Emphasis in original.]

[24] More importantly and as reiterated several times orally, nothing precludes the Crown, should it wish to do so, from calling any of the three attending physicians as part of Reply evidence to further elaborate on each of the medical visits should it have any concerns with respect to the reliability of the doctors' observations or assessments: see Ares, at p. 626. I understand the Crown intends to call Dr. Dholakia to testify about his assessment and treatment of Hue in February, March, April, July, and September of 2022.

[25] Third, it is well recognized that even if a hospital record is admitted, not all of the content within the record can be relied on by the trier of fact for the truth of its contents. For example, in K.K. v. M.M., Petersen J. considered the admissibility of a variety of medical records pursuant to a similar business records provision under s. 35 of the Ontario Evidence Act. Upon the legislative criterion being met, Petersen J. delineated that the records were admissible as business records for the purpose of establishing the observations made by the physicians, the treatments administered, that the patient made certain statements to the doctor, and for narrative to show what transpired at each medical visit. However, the hearsay statements and medical opinions contained within the records were not admissible for the truth of their contents: at paras. 33-41.

[26] In addition to directing the jury as to the proper use to be made of the hearsay statements or opinions of the attending physicians, counsel can also address risk of prejudice in their examination and cross-examination of witnesses which would include Dr. Selaman should she refer to the hearsay statements or opinions and Dr. Dholakia. In Parliament et al v. Conley and Park, Woodley J. found that the particular concerns raised by the inclusion of the hearsay evidence at trial could be satisfied through the trial process (e.g., examination and cross-examination of the witnesses): at para. 42. Justice Woodley declined to exercise his residual discretion to exclude the medical notes as a business record because they contained double or even triple hearsay or because the notes were inconsistent with a prior entry: at paras. 36-39. I note, however, that in that case the record keeper, record author, and hearsay declarant were all available to testify with respect to the content of the record whereas here amicus curiae have indicated Hue will not testify.

[27] In this case, I find the tools available within the trial process and a direction to the jury are sufficient to address any concerns related to prejudice of the jury being exposed to hearsay or opinion evidence of the attending physicians. Upon reviewing the records, I disagree with the Crown that there are "large swaths" of hearsay statements that the jury will be exposed to. Furthermore, there has already been considerable evidence put before the jury relating to the verbal and physical abuse experienced by Hue, including examples of specific shaming insults made by her mother. This evidence came from Hue's own statement to Det. Séguin, as well as the testimony of Chau and her brothers. Furthermore, the jury will be directed that the statements made by Hue to the three physicians involved in the above-noted medical visits, as well as any statements made by Hue to Dr. Selaman during their two interviews, cannot be relied on for the truth of their contents: see R. v. Chang, 2021 ONSC, at paras. 49, 52. I find the jury is capable of discerning whether statements made in the medical records or to Dr. Selaman during their interviews have not been put into evidence at trial.

[28] Fourth, I disagree with the Crown's suggestion that the jury might be confused by an instruction that directs them on the various purposes and uses they can make of different pieces of evidence. Experience has shown that juries are quite capable of understanding and following directions. As such, the court should be cautious before excluding evidence which is otherwise admissible under legislation and common law simply for these reasons. As explained by the Supreme Court of Canada in R. v. Corbett, [1988] 1 S.C.R. 670, at para. 39:

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross‑examination, it can be argued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide the issue in the dark. [Emphasis in original.]

[29] Finally, if the hospital records are admitted as business records, the Crown requests that the hospital records be redacted to exclude any statements made by Hue or Chau and any medical opinions provided by the three physicians. For the same reasons set out above, I find that upon meeting the criterion for the admissibility of the hospital records as business records, there is no basis for redacting the records as proposed by the Crown. Any concerns around the risk of prejudice that might arise from the jury's exposure to hearsay evidence can be addressed by a proper instruction to the jury.

[30] In conclusion, the seven medical records shall be admitted at trial as business records pursuant to s. 30 of the Canada Evidence Act and the common law rule in Ares v. Venner.

Ruling 2: Is the Expert Opinion Evidence of Dr. Selaman Admissible?

[31] I now turn to the second issue to be decided. That is, whether Dr. Selaman is qualified to provide expert opinion evidence on her assessment and diagnosis of Hue.

The Law on Expert Opinion Evidence

[32] I adopt paragraphs 9 to 13 of the Decision which sets out the law generally on the admissibility of expert opinion evidence. In short, in order for Dr. Selaman to be qualified to give expert opinion evidence I must be satisfied on a balance of probabilities:

a. the opinion evidence is logically relevant;

b. the opinion evidence is necessary to assist the trier of fact;

c. the opinion evidence is not subject to an exclusionary rule;

d. the expert is properly qualified to give the evidence, which includes the requirement that the expert be willing to fulfill their duty to the court to give evidence that is impartial, independent, and unbiased; and

e. if the opinion evidence is based on novel or contested science, the tendering party must establish the reliability of the science for that purpose.

[33] Once these requirements are met, I must determine whether the benefits of admitting the evidence outweigh its potential risks, which includes a continued consideration of the threshold factors of relevance, necessity, reliability, and absence of bias and weighing those factors against the consumption of time, and the potential for prejudice, including the likelihood that the evidence will confuse the trier of fact: R. v. Mohan, [1994] 2 S.C.R. 9; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330 ("Abbey 1"); R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40 ("Abbey 2"); and R. v. McRae, 2018 ONSC 3694.

Issue 1: Is Dr. Selaman Qualified to Give Expert Evidence?

[34] In preparation of her assessment of Hue, Dr. Selaman interviewed Hue two times, first on July 8, 2024, for three hours, and again on May 23, 2025, for one hour. She was unable to interview Hue a third time because Hue was residing at the Bruyère Hospital. In both interviews, she had a Vietnamese interpreter present. In addition to these interviews, Dr. Selaman reviewed Hue's interview with Det. Séguin on October 31, 2022. She also reviewed 140 pages of medical records, of which she relied principally on the seven records identified above that are admitted as business records, to arrive at her diagnostic impression and opinion as it related to Hue.

[35] Dr. Selaman also consulted the following collateral information: the transcript of the 911 call, police statements of Officers Tang, Downer, and De Los Santos; transcripts of police interviews of Chau's brothers, Chanh and Minh; transcripts of the brothers' testimony at the preliminary hearing; medical and other records of the deceased Kieu Lam; Dr. Danièle Bélanger's cultural report dated June 15, 2025; and Chau's statement to Det. Brennan. Finally, Dr. Selaman had the benefit and knowledge of her interviews with Chau and the medical and collateral records related to Chau.

[36] Based on her review of the above-noted information, Dr. Selaman concluded that Hue was likely experiencing MDD in the time period leading up to the alleged offence. She testified that according to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly referred to as the DSM-5, this disorder is characterized by five symptoms of depression that occur simultaneously for at least a two-week period and one of those symptoms has to be depressed mood or lack of interest in pleasure activities. In Hue's case, she found that Hue suffered from a depressed mood, loss of interest or pleasure, fatigue, feelings of helplessness, and recurrent thoughts of suicide. Dr. Selaman noted that the MDD was a recurrent episode because Hue had explained that she had been previously depressed, prior to the pandemic resulting in the sisters' trip to Vietnam, and there had been another episode in January 2022 when Hue attempted to commit suicide.

[37] Following the preparation of her Psychiatric Report, Dr. Selaman observed the testimony of Chau at trial. Chau's testimony did not cause her to alter her diagnostic impression.

[38] Dr. Selaman explained that she arrived at her diagnostic impression based on the totality of the evidence she considered. She noted in cross-examination that her opinion did not stem solely from her interviews with Hue. Dr. Selaman indicated that both Chau's testimony at trial, as well statements Chau made to Det. Brennan, corroborated the information provided to her by Hue. During the voir dire, Dr. Selaman identified specific pieces of evidence from Chau's testimony, the brothers' information, the medical records, and Hue's statement to the police that informed her diagnosis. She acknowledged that the suicide note located by the brothers was not something she was aware of until Chau's testimony. It had no date, so she did not know if it related to Hue's January 2022 suicide attempt or another time period. At most Dr. Selaman could state was that the note reflected how severe Hue's thoughts of suicide were.

[39] Dr. Selaman found that key factors which contributed to Hue's development of MDD, were the chronic stress Hue experienced from her mother's increasing violence towards both her and her sister, the increased burden on Chau as a caregiver to her, and her own conditions and limitations related to her neurological disorder.

[40] In addition, while Dr. Selaman had previously consulted only 140 pages of Hue's medical records, the night before this voir dire, she was provided with and reviewed approximately 600 pages of Hue's medical records. Those records are not in evidence before the court except the seven admitted as business records. Dr. Selaman opined that this additional medical information did not alter her diagnostic impression of Hue.

[41] Amicus curiae seeks to have Dr. Selaman provide opinion evidence on her psychiatric assessment and diagnostic impression of Hue in the period leading up to the offence. In addition, he seeks to have Dr. Selaman opine on the same topics on which I found she was qualified to opine on in the Decision. To summarize, amicus curiae seeks to have Dr. Selaman qualified as an expert in general and forensic psychiatry to give opinion evidence on her psychiatric assessment and diagnosis of Hue. In doing so, he seeks to elicit opinion evidence from her on:

a. Assessing, diagnosing, and treating psychiatric disorders;

b. The causes or factors that can contribute to mental disorders, including physical and psychological violence, chronic stress, escalation of stress, and caregiver burden, and how these factors may have contributed to Hue's diagnosis;

c. The symptoms of MDD noted above and what symptoms Hue exhibited; and

d. What impact MDD can have on a person generally, such as on their functional impairment and ability to evaluate options and make decisions, and whether Hue had manifested any such impacts.

[42] Amicus curiae further seeks to have Dr. Selaman qualified to give opinion evidence on the following issues based on her expertise in general and forensic psychiatry:

a. The impact that trauma and abuse can have on people, generally. This includes, but is not limited to:

i. The impact on mental health, including depression;

ii. The concept of learned helplessness;

iii. The concept of fight, flight, and freeze responses; and

iv. The chronic stress model and the effect of chronic stressors in psychiatric disorders, including forms of depression.

b. Reasons why abused people in general, including women, may stay in abusive relationships and not seek help. This includes topics and concepts which Dr. Selaman addressed during the voir dire, such as:

i. The impact of depression on one's self-perception, self-esteem, self-blame, self-confidence, and problem-solving skills;

ii. The psychological impact of chronic stress from violence on an individual;

iii. Learned helplessness;

iv. The ability of people to recognize abuse and the normalization of abuse;

v. The concept of caregiver burden, abuse in caregiver relationships, and why caregivers may not recognize caregiver abuse or make changes to address the caregiver abuse; and

vi. Psychiatric explanations for why victims of abuse may remain in abusive family relationships.

[43] As was the case with Chau and as per the Decision, amicus curiae does not seek to elicit opinion evidence from Dr. Selaman on the following:

a. The impact of chronic abuse or trauma on the ability of victims to recall details of the abuse;

b. Whether Hue was in a dissociative state during any of the abuse;

c. Why Hue specifically stayed in an abusive relationship with her mother or failed to seek help;

d. Why Hue specifically did not make additional disclosures to others or provide a full account of her abuse when she spoke to the police;

e. The application of the concepts of fight, flight, or freeze as it applies to Hue's conduct in killing her mother; or

f. Hue's conduct in killing her mother.

[44] As indicated in the Decision and reiterated verbally several times during legal arguments, counsel shall not seek to elicit Dr. Selaman's opinion on the conduct of the Lam sisters in the killing of their mother. This includes specific steps or conduct related to the issue of planning and deliberation. This does not preclude Dr. Selaman from explaining how concepts like fight, flight, or freeze might apply to cognition and psychological functioning of someone suffering from a mental disorder, including Hue. However, Dr. Selaman shall not be called upon to give opinion evidence on the application of these psychiatric terms as they might specifically apply to the conduct of the Lam sisters in killing their mother. Dr. Selaman has not been mandated to provide such an opinion and to permit her to opine on the conduct at issue would risk having her usurp the role of the jury as trier of fact. As explained in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 46:

[46] Given the concerns about the impact expert evidence can have on a trial — including the possibility that experts may usurp the role of the trier of fact — trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges — including those in judge-alone trials — have an ongoing duty to ensure that expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert's testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert's testimony, the testimony remains within the proper boundaries of expert evidence. As noted by Doherty J.A. in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 62:

[45] As already noted, the Crown does not dispute Dr. Selaman's qualifications to opine on the identified issues but opposes admissibility of her evidence on other grounds discussed below.

[46] For the same reasons as set out at paragraphs 14 to 15 and 26 to 30 of the Decision, I find Dr. Selaman has the specialized knowledge gained through study and experience to provide opinion evidence on her psychiatric assessment and diagnosis of Hue, as well as on the above-noted topics: see Mohan, at para. 27.

[47] Finally, Dr. Selaman has acknowledged in writing her responsibilities as an expert which requires her to provide to the court evidence that is impartial, independent, and unbiased. Upon reviewing the acknowledgment and hearing Dr. Selaman testify on three occasions during this trial, I am satisfied that she fully understands and is willing to fulfill her duty as an expert.

Issue 2: Is the Proposed Opinion Evidence Logically Relevant?

[48] In this case, there is evidence from the 911 call, the police interviews of the Lam sisters, Chau's testimony, and the testimony of her brothers, that both Lam sisters were subject to verbal and physical abuse throughout their lives and that this violence escalated in the months preceding their mother's death. The nature, duration, and scope of the abuse suffered, including during the time leading up to the offence, will be for the jury to determine upon consideration of the totality of the evidence presented.

[49] Dr. Selaman testified that in the time period before the offence, Hue was suffering from MDD. The causes of the MDD included both the chronic abuse she had suffered from her mother, as well as the onset of her illness which left her less able to cope with the abuse as it escalated. Hue exhibited symptoms of depressed mood, helplessness, and worthlessness. Her appetite and sleep were fluctuating. Dr. Selaman opined that while Hue's symptoms were reduced in the immediate months preceding the offence, during which time she was receiving psychiatric care, they were not reduced to the point of remission, and Hue continued to be in a state of a major depressive episode on or around October 31, 2022. Dr. Selaman opined that as Hue's hopelessness peaked, it could have impacted her ability to problem solve.

[50] When asked about the application of the concepts of flight, fight, or freeze as they might apply to Hue, Dr. Selaman opined that these are normal responses to a threat. However, when a threat is chronic and does not go away, the brain remains in a state of higher stress and cannot turn off. In Hue's case, she was able to fully detach from the chronic stress of her mother's abuse when she was able to drive and go to work. However, when Hue became confined to the home and started to deteriorate physically due to Parkinson's disease, that chronic stress was more prevalent and there was no way to escape it. This situation that she found herself in, along with her physical vulnerability from Parkinson's disease, could have contributed to a higher state of alertness. Dr. Selaman opined that all these factors would have contributed to Hue's mental state and her perception of the continued abuse by her mother.

[51] For the same reasons provided at paragraphs 31 to 59 of the Decision, I find the proposed opinion evidence of Dr. Selaman is logically relevant to the issues of motive, intent, credibility, and the elements of self-defence should it be put before the jury. I will not repeat that analysis here. However, to summarize briefly, a mental disorder or illness may fall short of establishing a mental disorder defence but can still raise a reasonable doubt as to whether the accused had a subjective mental element required for a particular offence such as, in this case, on the issue of planning and deliberation for the charge of first-degree murder. In addition, the opinion evidence is relevant in assessing the "reasonable" person under the first and third components of the test in ss. 34(1)(a) and (c): R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 54. The self-defence provision requires that the reasonable person be contextualized and considered in accordance with the attributes of the accused. Consequently, Hue's mental disorder (MDD) and physical limitations resulting from her illness (Parkinson's disease) are factors for consideration by the jury.

[52] Dr. Selaman's psychiatric opinion evidence is also relevant to credibility. In this regard, Dr. Selaman opines on Hue's symptoms of helplessness and hopelessness. This opinion evidence can facilitate the jury's understanding of how Hue's mental disorder could have impacted her perception of events and choices which can, in turn, impact the jury's assessment of Hue's credibility when she discussed those choices in her statement to Det. Séguin.

[53] In conclusion, I find the evidence is logically relevant to the issues at trial which includes the credibility of witnesses, motive, intent, planning, and elements of the defence of self-defence should it be put to the jury.

Issue 3: Is the Evidence Necessary?

[54] For the same reasons set out at paragraphs 60 to 65 of the Decision, I find that the evidence is necessary. Psychiatric evidence of the assessment, diagnoses, causes, and impacts of mental disorders is not within the realm of understanding of the average juror. While people may have some experience with mental disorders, such as depression, because they have experienced it themselves or with loved ones, this knowledge is not as comprehensive as the proposed opinion evidence that would be provided by Dr. Selaman.

[55] I find that the opinion evidence is necessary to educate the jury about mental disorders so that they can understand whether the mental disorder of MDD could have impacted Hue's state of mind, cognition, and function in the period preceding the offence.

Issue 4: Does the Proposed Evidence Meet the Remaining Threshold Factors?

[56] The proposed opinion evidence is not subject to any exclusionary rule.

Issue 5: Is the Expert Evidence Sufficiently Beneficial to the Trial Process to Warrant Its Admission?

[57] In the final stage of the analysis, the trial judge must exercise their gatekeeping function and be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. The requirements of the gatekeeping function are aimed to ensure that expert evidence is not routinely admitted with only its weight to be determined by the trier of fact: Abbey 1, at paras. 78-79; White Burgess, at para. 20.

[58] The four factors of legal relevance, necessity, reliability, and absence of bias continue to play a role in weighing the overall competing considerations in admitting the evidence. These factors must be measured against potential prejudicial effects such as consumption of time, prejudice, and confusion: White Burgess, at paras. 24, 54. A trial judge should not exclude the proposed expert opinion evidence where it is tendered on behalf of the accused in a criminal case unless the prejudice substantially outweighs the probative value of the evidence: see R. v. Collins (2001), 160 C.C.C. (3d) 85 (Ont. C.A.), at para. 19, citing R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 390 and R. v. S.C.B. (1997), 119 C.C.C. (3d) 530, at p. 541 (Ont. C.A.).

[59] For the same reasons outlined above, I find Dr. Selaman's opinion evidence is necessary to provide the jury with knowledge about mental disorders, as well as their causes and impacts, including the disorder she diagnosed Hue to be suffering from at the time preceding the offence. It is logically relevant to the issue of motive, intent, planning and deliberation, credibility and the self-defence should it be put to the jury. Given Dr. Selaman's qualifications and comprehensive approach in preparing her report, and having heard her testimony at the voir dire, I find her opinion evidence is reliable.

[60] The Crown's opposition to the opinion evidence rests primarily around concerns about Dr. Selaman's reliance on hearsay evidence. The Crown initially raised and continues to maintain concerns about the prejudicial effect of admitting Dr. Selaman's opinion evidence if she relied primarily on Hue's statements to her and Hue does not testify at trial. This issue is generally cured by an instruction to the jury that opinion evidence is to be given less weight if it is based on evidence not tendered at trial. However, the Crown's concern is that the bulk of information upon which Dr. Selaman relied comes from her interviews with Hue. If Dr. Selaman is permitted to give opinion evidence, the Crown submits the jury would be exposed to hearsay evidence which they cannot test if Hue does not testify.

[61] In Sopinka, Lederman, and Bryant: Law of Evidence in Canada, the authors address the concern raised over the use of experts as conduits for otherwise inadmissible hearsay evidence that would go before a jury and the role of the trial judge as gatekeeper in vetting some of that hearsay. In doing so, they propose one approach taken in the U.S. jurisprudence which would allow for the vetting of such hearsay by the trial judge. However, the only Canadian authority cited for this approach is the decision in Khan v. College of Physicians and Surgeons (1992), 9 O.R. (3d) 641 (C.A.). In that case, the College of Physicians tendered two witnesses before the Discipline Committee of the College of Physicians and Surgeons of Ontario in a disciplinary hearing for Dr. Khan. The Committee accepted these witnesses as experts in the investigation, verification, and treatment of the sexual abuse of children. Both experts expressed an opinion that a child had been the victim of sexual abuse. After the Committee held that one of the experts could give expert evidence, she was questioned as to the basis for her opinions. She identified several sources of information she had relied on in arriving at her opinion. These included her interview with the mother and a taped interview with the child. The Committee then heard lengthy argument as to the admissibility of the tape-recording of the interview with the child, but counsel for Mr. Khan did not take exception to the admissibility of the mother's statements to the expert. After the argument was completed, counsel for the Committee advised the Committee that the evidence could be received on the following basis:

... expert witnesses giving their opinions are entitled in law to state what the basis is of their opinions, and that that evidence which would otherwise be hearsay is admissible not to prove that what was heard was true but to form the basis for their opinion.

[61] Upon hearing the arguments, the Committee held:

We will also permit the witness to be questioned as to the basis for her opinion. It is agreed that the statements of the child to her may be used in coming to her opinion, but that they are not to be admitted into evidence to establish that the child's statements are true.

[62] On appeal, the majority in the Divisional Court held that the out-of-court statements made to the expert constituted hearsay and should have been excluded. The Court of Appeal for Ontario disagreed and found the majority of the Divisional Court had erred. Relying on the cases of R. v. Abbey, [1982] 2 S.C.R. 24 ("Abbey (SCC)") and R. v. Lavallee, [1990] 1 S.C.R. 852, the court found that the Committee properly received the evidence that formed the basis of the expert's opinion. The Court of Appeal stated as follows at p. 663:

With respect, the majority erred in so holding. An expert witness who is competent to give an opinion which is relevant to a fact in issue is entitled to testify as to the information relied on in arriving at that opinion. That evidence is admissible to establish the basis for, and consequently the value of, the opinion advanced by the expert. It is not admissible for the truth of the contents of the material relied on by the expert: R. v. Abbey, [1982] 2 S.C.R. 24, 68 C.C.C. (2d) 394, at pp. 42-46 S. C.R., pp. 409-12 C.C.C.; R. v. Lavallee, [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97, per Wilson J. (majority) at pp. 892-93 S. C.R., p. 127 C.C.C., per Sopinka J. (concurring) at pp. 898-900 S. C.R., pp. 131-32 C.C.C. This rule has been applied in cases of child abuse to permit an expert to testify as to statements made to the expert by the child: R. v. Manahan (1990), 1990 ABCA 350, 61 C.C.C. (3d) 139 (Alta. C.A.), at p. 143; R. v. Beliveau (1986), 30 C.C.C. (3d) 193 (B.C. C.A.).

These authorities demonstrate that the Committee properly permitted Ms. Shedletsky to testify as to the basis of her opinion. Furthermore, the Committee directed itself on two occasions that the statements made by Tanya to Ms. Shedletsky could not be used to prove their contents. I am satisfied that the Committee properly received and considered that evidence.

[63] The Court of Appeal went on to state, however, that there may be some cases where a tribunal might control the extent to which the expert places the substance of their opinion before it. In this regard, the Court of Appeal stated at pp. 663-64:

While an expert may indicate the basis for her opinion, the tribunal controls the extent to which the expert places the substance of that material before the tribunal. In some cases, for the purposes of examination-in-chief at least, the foundation for the expert's opinion may be adequately laid without reference to the actual content of out-of-court statements made to the expert. In other cases it will be necessary to admit some, or perhaps all, of that content in order to lay the foundation for the expert's opinion. In each case, the tribunal will consider the relevance of the content to the formation of the expert's opinion, as well as the potential prejudice to the opposing party by the admission of the out-of-court statements, in deciding whether to permit the expert to testify as to the content of those out-of-court statements.

In this case, the Committee was not asked to exercise the discretion referred to above. In the absence of any such submission, I am not prepared to hold that the Committee erred in permitting Ms. Shedletsky to relate the contents of those statements.

[64] It is this particular passage that the authors of Sopinka, Lederman, Bryant: Law of Evidence in Canada appear to rely on to suggest that trial judges may have some discretion as gatekeepers to vet or exclude inadmissible hearsay evidence relied on within an expert's testimony. However, the Crown has not provided nor have I been able to locate authorities where expert opinion evidence was not admitted because it contained inadmissible hearsay or where the trial judge engaged in an exercise of excluding from the jury potentially inadmissible hearsay evidence upon which the expert relied on in forming their opinion.

[65] Consequently, I agree with amicus curiae that as per the jurisprudence in Abbey (SCC) and Lavallee, at p. 893, the proper approach to the treatment of inadmissible hearsay relied upon by an expert is an issue of weight, not admissibility. In Lavallee, the Supreme Court of Canada discussed the application of the jurisprudence on this issue. The Court summarized the principles as follows:

a. An expert opinion is admissible if relevant, even if it is based on second-hand evidence;

b. Hearsay is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based;

c. Where psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion; and

d. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.

[66] The Court in Lavallee expressly rejected the proposition that each of the specific facts must be proven in evidence before any weight can be attributed to a doctor's opinion about the accused's mental state. The Court indicated that "as long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony." The solution is an appropriate charge to the jury: that the more the expert relies on facts not proved in evidence, the less weight the jury may attribute to the opinion: at p. 896.

[67] This does not preclude the court from exercising some caution in circumstances where the information upon which the expert relies comes from the "mouth of a party to the litigation" or from any source that is inherently suspect. As the Court noted, it will be very rarely that an expert's opinion is entirely based upon such information with no independent proof of any of it. As stated by Sopinka J. (concurring) at p. 900 of Lavallee:

Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, or from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proof will, consistent with Abbey, have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point. But it must be recognized that it will only be very rarely that an expert's opinion is entirely based upon such information, with no independent proof of any of it. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight. In this respect, I agree with the statement of Wilson J. at p. 896, as applied to circumstances such as those in the present case:

... as long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion.

[68] In R. v. Scardino (1991), 6 C.R. (4th) 146 (Ont. C.A.), for example, the Court of Appeal for Ontario agreed with the trial judge's direction that no weight should be given to an expert opinion that was based solely or substantially on inadmissible hearsay evidence. In that case, the Court of Appeal held that the opinion had reached the "vanishing point" because the central and most important factor for the expert's opinion had been derived from hearsay accounts provided by the accused to the expert which were not testified to in court. As such, the trial judge was correct in telling the jury it should be given no weight: at p. 156.

[69] In this case, Dr. Selaman explained that the sources of information that she relied on to come to her opinion included information from Hue, Chau, their brothers, and Hue's medical records. She did not rely solely on what Hue told her to arrive at her opinions. Moreover, the manner in which she approached the matter was to review the disclosure materials, conduct an interview, review the materials again along with Hue's medical records, and conduct another interview to probe further. After consideration of all the evidence and looking at it as a whole, she arrived at her diagnostic impression. She was also present for Chau's testimony in court and reviewed another 600 pages of Hue's medical records for 2021-2022 to determine if, just prior to her testimony on the voir dire, it would alter her diagnostic impression of Hue. It did not. Furthermore, she testified that much of what Hue told her in the interviews was corroborated by Chau, her brothers, and in the collateral information she reviewed.

[70] In addition, amicus curiae has set out in Appendix A to the Materials filed in this voir dire evidence that is before the jury which Dr. Selaman relied on to inform her psychiatric diagnosis of Hue as having MDD; the factors that contributed to it, such as the onset of her illness and the chronic and escalating abuse from her mother; and the impact of the MDD on Hue's cognition and function. Appendix A also identifies evidence before the jury which Dr. Selaman relied on in identifying the symptoms and the impact of MDD experienced by Hue, such as hopelessness, worthlessness, depressed mood, isolation, and inability to cope. I set out below a portion of the evidence listed in Appendix A which informed Dr. Selaman's opinion.

1. Testimony of Cst. Tang: Hue stated to him that "this week" on "Monday," her mother had hit her and gestured how she was hit. Hue also stated to Cst. Tang that when she was younger, her mother was aggressive and yelled and hit her.

2. Hue Lam's statement to Det. Séguin: In regard to the abuse, Hue told Det. Séguin that her mother had yelled, cursed, and hit her since childhood. Hue reported that her mother insulted and shamed her with words, and Hue provided examples of those words and phrases. Hue reported that her mother had a "hot temper," was controlling, that she had to seek permission to leave the home, and her mother could not live with anybody. Hue reported that her mother did not speak English and that is why the sisters tried to endure it. Her mother became more difficult. In the year preceding the alleged offence, Hue was sick. Her mother shamed her for not working and not having a husband. She had been suffering for many years. Hue reported that her mother "yelled a lot and hit us," "last Monday." Hue explained that she was "[j]ust getting upset but not in a rage;" it was an "accumulated pressure…like people used to say overflowing water broke the dam;" and "[i]t has been "compressed inside before a long time." Hue reported that if she were released, she would have no place to go, no job, and no relatives. She did not want her brothers to be called. Dr. Selaman explained that these latter comments of having nowhere to go and unwillingness to involve her brothers reflected Hue's symptoms of hopelessness.

3. Chau's testimony: Chau testified that her mother abused both her and her sister. More specifically with respect to Hue, Chau testified that her mother would curse her, and Hue would go to work in the morning with tears and would cry at dinner and nighttime. Her mother never hugged, kissed, or told Hue that she loved her. When Hue became more ill and was unable to defend herself, her mother continued to abuse Hue, which upset Chau. Chau could not understand why her mother would do this knowing Hue was ill. After Hue got sick, she lost her job and her driver's licence. Without a licence, Hue went to the temple less. Chau testified that Hue had an episode of depression before the pandemic and they went to Vietnam for a few weeks to see if that might help her. After Hue became ill, there were physical changes to her body, and Hue was sick and physically weak.

4. Chau's statement to Det. Brennan: Chau reported that the abuse escalated after Hue got sick and that her mother cursed all the time. Her mother would say that Hue was sick and could not work, which was shameful. Her mother scolded her frequently and beat her sister. Chau reported that "Last week…she kept on cursing…and also beat." Chau stated that her mother constantly scolded "in the morning, in the afternoon, and in the evening." And because her mother saw that Hue was sick, she beat Hue a lot.

5. Chanh Huynh's Testimony: Chanh testified that the changes in the household due to Hue's illness upset her because of the constraint on her normal activities. His brother would bring them groceries. Chanh believed Hue wrote the suicide note.

6. Minh Huynh's Testimony: Minh testified that his mother used language to put all of the children down and the language was insulting. He testified that his mother would scold the sisters from morning to night.

[71] Amicus curiae has also set out in Appendix B of the Materials filed in the voir dire a summary of the information within the medical records and its relevance to Dr. Selaman's psychiatric opinion. As already noted, Dr. Selaman highlighted in cross-examination which portions of each of the medical records she relied on in forming her opinion, many of which are set out in Appendix B.

[72] Consequently, I do not agree with the Crown's argument that the probative value of the opinion evidence is outweighed by the prejudicial effect of the jury being exposed to some inadmissible hearsay because Hue will not testify. I am satisfied that there is more than "some admissible evidence" to establish the evidentiary foundation for Dr. Selaman's opinion, and it will be for the jury to determine what weight to be given to it. This is not a situation as in the case of Scardino where Dr. Selaman has relied primarily on inadmissible hearsay to arrive at her opinion in relation to Hue's mental disorder, its causes, and its impacts. In addition, I find that parsing the medical record line by line with respect to inadmissible hearsay or medical opinion evidence (i.e. is it the doctor's observation or opinion) would be a tremendously challenging exercise and could make it difficult for the jury to understand what Dr. Selaman relied on in arriving at her opinion.

[73] Furthermore, I disagree with the Crown that the proposed opinion evidence should be excluded because it will confuse the jury. The proposed opinion evidence will facilitate the jury's understanding of the evidence before it. Concerns about the weight to be given to the opinion evidence because of its reliance on some facts that are not before the jury and concerns about propensity reasoning from generalized evidence about myths and stereotypes to specific conclusions relating to the accused can be addressed through proper jury instruction.

[74] The additional expert evidence will require another day, following which Hue intends to close her case. The testimony of Dr. Selaman will likely be shorter given that she has already testified about her qualifications.

[75] Having reviewed Dr. Selaman's expert report, having heard her testimony on the voir dire, and having considered counsels' submissions, I find the probative value of the evidence is not outweighed by any prejudicial effect. In undertaking the cost-benefit analysis on the admission of the opinion evidence, I have considered again the threshold factors of relevance, necessity, reliability, and whether or not there is any bias in the proposed evidence. Having weighed the factors against the consumption of time this evidence will take, whether the evidence might confuse the jury, and any other potential prejudice, I find the probative value of the evidence is not outweighed by any prejudicial effect.

[76] In conclusion, Dr. Selaman will be able to provide opinion evidence on her assessment and diagnosis of Hue, as well as the issues and psychiatric concepts outlined above. The scope and parameters of her evidence are the same as that ordered for her testimony as it related to Chau. To be clear, she is not entitled to provide opinion evidence as it relates to the matters set out at paragraph 43. These parameters do not restrict my ability as gatekeeper to disallow any questions during her testimony even in the absence of an objection from the opposing party.

[77] Finally, should there be any discrepancy between the written and oral ruling, the written ruling shall prevail.

Released: August 6, 2025

Somji J.