Keywords: Evidence; principle of admissibility; hearsay; principled approach; spontaneous utterances; prior consistent statements; opinion; qualification of expert; scope of expert opinion evidence.
Synopsis: ‘If you tell anyone what happened in the bathroom you will be in trouble and I will kill both you and your family’ – that is the threat the Complainant reported his uncle uttered after sexually assaulting him in the bathroom at a family gathering. Immediately after the incident another relative entered the bathroom and asked if everything was alright. The Complainant failed to report anything was wrong at the time. Several months later the Complainant disclosed the crime to his mother but did not mention the threats. His mother sought assistance from police and child welfare but no charges were laid. Approximately a year after that report, the Complainant provided a more detailed version of the allegation where he explained his uncle had raped and threatened him. The Accused was then arrested by police. Within a day of the second police report the Complainant and his mother were visiting a relative when the Complainant suddenly screamed, collapsed, and convulsed on the floor for 20-30 minutes in a seizure-like episode. During the episode the Complainant’s eyes rolled back in his head and he held his private areas saying “he’s going to kill me.” He exhibited laboured breathing and rolled around on the floor. At one point the panicked Complainant moved towards the wall after hearing the phone ring and identified the caller as “uncle.” At trial, in an attempt to link the episode with the sexual assault, the Crown called clinical psychologist Dr. Wolfe to give expert evidence concerning the episode and what it revealed (at para. 24). Despite admissibility objections, the trial judge permitted Dr. Wolfe as well as cognitive psychologist, Dr. Moore (called by the Appellant) to give evidence on the same issues. The Appellant was convicted and appealed to the Ont. C.A. arguing the judge erred when she admitted and relied on expert evidence concerning the episode and its connection and confirmation of crimes alleged.
Importance: Writing for the Court, Justice Watt identified relevance, materiality, and admissibility as fundamental principles governing the receipt of evidence in criminal proceedings. Admissibility, he explained, is not an inherent characteristic of evidence but rather a quality the law attaches to it “once it has satisfied all the auxiliary tests and extrinsic policies of the law of evidence” (at para. 48). Evidence that is irrelevant or immaterial does not engage rules of admissibility but are themselves justifications for exclusion (at para. 48). Evidence in relation to the episode of the Complainant engaged three admissibility rules being 1) hearsay, 2) prior consistent statements, and 2) opinion. Watt, J. then went on to provide a concise treatise of each rule engaged by the episode, and its scope of use as evidence.
The defining features of hearsay are 1) the statement is adduced to prove the truth of what was said, 2) in the absence of a contemporaneous opportunity to cross-examine its declarant (para. 50). The purpose for which the evidence is adduced is the touchstone for the admission of hearsay evidence which is admissible if indicia of necessity and reliability are satisfied (i.e. the principled approach in R. v. Khelawon, 2006 SCC 57). In addition to the principled approach are traditional exceptions to hearsay such as excited utterances and spontaneous statements. In both traditional examples “necessity is based on expediency since no other equally satisfactory source for the evidence exists either from the declarant or elsewhere” and “reliability is rooted in the spontaneous origin of the statement before there is time for concoction” (at para. 55).
Prior Consistent Statements
Evidence of prior consistent statements (which include both a hearsay and declaration element) are generally excluded because they lack probative value (para. 59). Exceptions to admitting prior consistent statements permit their admission for narrative and circumstantial evidence purposes but do not permit reliance to prove the truth of their contents (at paras. 62-63). When used as circumstantial evidence, prior consistent statements often assist in establishing the fact the statement was made and may provide insight into a fact of importance at trial such as the declarant’s state of mind (at para. 63). For narrative purposes, prior consistent statements aid the comprehensible unfolding or chronological cohesion of events (para. 64).
Opinion evidence is generally with exception to opinions of qualified experts (at para. 68). Qualified experts rely on accumulated expertise to interpret evidence (within a defined nature and scope) for the purpose of expressing new information in the form of their expert opinions. The factual premise for the expert opinion must be established by evidence otherwise properly admissible in the proceedings or it may be entitled to less weight (or none at all); R. v. Abbey, 1982 CanLII 25 (SCC); R. v. Lavallee, 1990 CanLII 95 (SCC). Expert opinion evidence must satisfy criteria of R. v. Mohan, 1994 CanLII 80 (SCC) at para. 20, which include: relevance; necessity; other exclusionary rules; and qualifications of the expert (at para. 72). If the evidence meets the Mohan criteria the trial judge then acts as a ‘gatekeeper’ and decides if the benefits (relevance and probative value) of the opinion evidence predominate over the costs (consumption of time, prejudice, and confusion) of its admission (at paras. 77-79).
Watt, J. held the Complainant’s utterances during the episode were not admissible for the truth of their contents nor could they be relied on as independent corroboration of the allegations (at para. 80). Eyewitness accounts of the Complainant’s utterances considered together with his gestures, at a minimum, amounted to an implied confirmatory assertion of the sexual assault as alleged (at para. 86). This implied assertion amounted to a prior consistent statement of the Complainant and did not satisfy the narrative exception – the only applicable exclusionary rule in the circumstances (at para. 90). Statements during the episode were “not truly essential to the unfolding of the narrative” since they occurred one year later after the second report to police which was also after the Accused had been arrested (at para. 91). Watt, J. noted even if admissible under the narrative exception, the utterances could not be used to prove the truth of their contents nor “furnish a basis for any inference that the case for their truth is more compelling” (at para. 92). The implied assertion was hearsay since the statement was made out-of-court with no opportunity for cross-examination because the Complainant had no recollection of the episode. The traditional hearsay exception for spontaneous statements refers to a “then-existing state of physical or mental condition” and did not apply to the episode because it was an utterance proffered as proof of the truth of an event alleged to have occurred years earlier (at para. 95). The utterances thus also lacked reliability and necessity within the traditional exception. For similar reasons, Watt, J. also concluded the utterances lacked sufficient threshold reliability that would permit their admission under the principled approach to hearsay (at para. 96). Dr. Wolfe’s opinion about the nature of the episode and its origins in the alleged sexual assault was beyond the scope of his expertise and inadmissible since key foundational facts on which it was based were inadmissible (paras. 80, 85 and 101). Dr. Wolfe lacked practical and academic expertise in non-epileptic seizure episodes and proffered an opinion beyond his expertise relying on key foundational facts of which there was no admissible evidence (at paras. 98-101). Justice Watt concluded:
The trial judge admitted and relied upon evidence that should not have been received. This evidence was critical to her acceptance of the testimony of the complainant. Without this evidence, I cannot say that the trial judge’s conclusion would necessarily have been the same…I would allow the appeal, set aside the convictions and order a new trial (at paras. 102 and 104).
Counsel for Appellant: Marie Henein & Matthew Gourlay (Henein Hutchison LLP, Toronto)
Counsel for Respondent: Benita Wassenaar & Jennifer Mannen (Crown Law Office Criminal, Toronto)