R. v. M., B.

R. v. M., B. Collection Decisions of the Court of Appeal Date 1998-10-27 Docket numbers C26830 Judges Morden, John Wilson; Weiler, Karen Merle Magnuson; Rosenberg, Marc Subject Criminal Decision Content DATE: 19981027 DOCKET: C26830 COURT OF APPEAL FOR ONTARIO MORDEN A.C.J.O., WEILER and ROSENBERG JJ.A. BETWEEN: ) ) Alan D. Gold, HER MAJESTY THE QUEEN ) David W. Schermbrucker ) and James E. Weppler, (Respondent) ) for the appellant ) and ) Gary T. Trotter, ) for the respondent B.M. ) ) (Appellant) ) ) Heard: June 3 and 4, 1998 ) ROSENBERG J.A.: [1] The appellant, B.M., was tried by Murphy J. and a jury in Gore Bay on a forty-nine count indictment. He was charged with offences ranging from failing to comply with a recognizance to the former offence of rape. The indictment included allegations of indecent assault, invitation to sexual touching, detaining for illicit sexual intercourse, gross indecency, buggery, incest, assault causing bodily harm, weapons offences and bestiality. The charges span a 39-year period from 1955 to 1994 and relate to four daughters, one spouse, a stepson, a babysitter, a family friend, a cousin and two dogs. The appellant testified and, except for admitting several minor physical assaults, denied the allegations. [2] The appellant appeals on seven grounds. The determinative issue in this appeal is the trial judge's failure to adequately instruct the jury on the use to be made of the evidence of the different counts and, in particular, the trial judge's failure to instruct the jury to deal with each count separately. In light of these errors, this appeal must be allowed, the convictions set aside, and a new trial ordered. In addition to this ground of appeal, however, this case raises many issues which I believe I must address as they will likely arise again at the new trial. THE FACTS [3] In light of my conclusion that there must be a new trial, I will only give a brief overview of the facts. By the time of the trial, the appellant was 63 years of age and living on a disability pension. The allegations against the appellant date back to a time shortly after the appellant married his first wife, B.M. [4] The earliest allegation concerned a cousin of the appellant’s wife. It was her evidence that the appellant indecently assaulted her on one occasion in 1955 when he was visiting her home. She was fourteen years of age. [5] The appellant has four daughters. He allegedly sexually assaulted all of them at various times. In 1962 or 1963, when the eldest daughter, J.W., was approximately seven years of age, the appellant entered her bed and indecently assaulted her. J.W. shared her bed with her sister D.L. J.W. attempted to resist the appellant’s assault. Eventually the appellant moved to the bed her sister J.L. shared with her brother. J.W. heard J.L.. whimpering. J.L. was 5 or 6 years of age at the time. None of the other siblings woke up during the assaults. The following day, J.L. and J.W. complained to their mother and she took them to a physician. According to J.W., the physician found no evidence of abuse. J.W. heard the appellant go into J.L.’s bed on approximately ten occasions, both before and after this incident. [6] J.W. also heard, but did not see, the appellant assault a babysitter, S.E.. S.E. testified that the appellant indecently assaulted her on two occasions between 1965 and 1966 when she was between 12 and 13 years of age. S.E. testified that the day after the first incident, her mother came and took her out of school and asked her if something had happened. The mother was called as a defence witness and denied that this occurred. The second incident was said to have occurred at a carnival that she attended with a friend and the appellant. The friend was also called as a defence witness and denied having attended a carnival. [7] J.L., the second eldest daughter, testified that she had a very clear recollection of the appellant sexually assaulting her on two occasions when she was two years of age in 1960-61. The appellant assaulted her again when she was five years of age, and then yet again over the period from 1967 to 1971 when she was between the ages of 9 and 13 years. The assaults occurred in different locations and included full intercourse. She also gave evidence of what she referred to as “bed-hopping” — the appellant going from one daughter’s bed to that of another during the night. J.L. saw the appellant go to J.W. bed and the bed of another sister, D.L.. J.L. testified that there were approximately 200 bed-hopping incidents. [8] J.L. also witnessed an incident involving her friend S.R.. S.R. testified that in 1969, when she was 10 years of age and visiting the M. home, the appellant took her into the bathroom and committed acts of indecent assault and buggery. J.L. testified that she saw Susan run by her in hysterics. [9] Further, J.L. testified that in 1968 or 1969 she observed the appellant commit an act of bestiality on the family dog. [10] D.L. is the third eldest daughter. She testified that the appellant repeatedly indecently assaulted her when she was between the ages of 7 and 14 years, in 1967 to 1974. The assaults occurred in various parts of the house, including the bedroom that she shared with her brother and sisters. D.L. testified that there was constant violence in the home and on many occasions the appellant would fire his guns in the backyard. A police officer testified that there were no reported occurrences of guns being discharged at the appellant's residence. [11] The youngest daughter, L.W., testified that the appellant committed acts of indecent assault and gross indecency on her when she was between 8 and 10 years of age, in 1973 to 1976. [12] B.M. married the appellant in 1955. She testified to numerous physical and sexual assaults on her by the appellant until they separated in 1976. She also testified to one incident where the appellant pointed a rifle at her. K.K., an employee of the dairy bar where B.M. also worked, testified that she saw the appellant physically assault B.M.. As well, there were a number of occasions when B.M. came to the K.K. home with various bruises and scratches. On one occasion, B.M. was naked when she arrived at their home. [13] The appellant’s children also testified to witnessing the appellant beating B.M.. J.W. testified that the appellant severely beat B.M. virtually every weekend. The son, E.M., testified that he too saw the appellant beat his mother on at least two occasions between 1967 and 1975; he also saw him point a rifle at her. J.L. saw the appellant assault her mother and point a firearm at her. D.L. saw the appellant sexually assault and beat her mother. [14] J.W.’s husband used to hunt with the appellant. He testified that in 1991, he arrived at the hunting camp unexpectedly and observed the appellant committing an act of bestiality on the family dog. [15] The complaints concerning the appellant’s daughters and B.M. came to light in May or June 1992. J.W. testified that she became concerned about B.S., the young grandson of the appellant’s third wife, L.M., both of whom were living in the appellant’s home. J.W. contacted the police and then contacted her mother and her siblings. She arranged for them to speak to the police. She and her sisters also commenced a $2 million lawsuit against the appellant, B.M. and L.M.. [16] In the spring of 1992, the daughters decided to meet with the appellant at his home. The daughters confronted the appellant with the abuse he had inflicted upon them when they were children. The appellant’s only response was: “Well, I’ve lived without you before, I can do it again.” The appellant confirmed making this response in his evidence. He claimed, however, that at the time of the meeting he was not wearing his hearing aids and thought they were referring to abuse of B.M. and his second wife, E.A.. [17] The final set of allegations concerns B.S., the fifteen year- old grandson of L.M.. In June 1994, he lived with the appellant and his grandmother. By this time, the charges relating to the appellant’s daughters had been laid. B.S. testified that, on many occasions, the appellant paid him $5.00 to masturbate him. B.S. disclosed these assaults in December 1994. Before this time, B.S. had regular contact with a police officer and a social worker. Despite being specifically asked if the appellant had sexually assaulted him, B.S. did not disclose this information. [18] L.M. was a defence witness. She testified that B.S. was difficult to control and would swear at her, fight and steal. Once, when the appellant beat B.S. with a belt, the Children’s Aid Society became involved. The social worker spoke to the appellant about using excessive force to discipline B.S. [19] The appellant confirmed that he struck B.S. once with a belt. Other than admitting that he "pushed" B.M. "around", the appellant denied all of the other allegations. [20] The appellant was convicted of 33 counts. A number of counts were withdrawn, and he was acquitted of four counts. He was sentenced to a total of nine years and three months' imprisonment. He appeals the convictions and the sentence. THE ISSUES [21] The appellant appeals on the following grounds: i. Failure to sever the bestiality counts; ii. Misdirection on the use to be made of evidence of other counts; iii. Failure to adequately present the theory of the defence; iv. The verdict was unreasonable; v. Misdirection with respect to the civil suit; vi. Production of the complainants' telephone records; and vii. Admissibility of the opinion evidence of Dr. Bray. As noted at the outset, while the misdirection is determinative, I will address each of these grounds in turn. ANALYSIS i. Severance [22] The appellant was charged with two counts of bestiality. At the opening of the trial, counsel for the appellant applied to sever these counts. The appellant's daughter J.L. gave evidence of one incident that occurred in 1968 or 1969; the second incident was witnessed by J.W.’s husband in 1991. The appellant was acquitted of the latter charge. [23] The trial judge dismissed the application for two reasons. First, he referred to the delay in making the application. The appellant had been committed for trial in January 1995 and the first trial commenced in April 1996. No question of severance was raised. It ended in a mistrial shortly after jury selection. The second trial commenced in October 1996. Notice of the severance application was served just two weeks before its commencement. [24] Second, the trial judge dismissed the application as he did not believe the jury would be any more inflamed by the bestiality allegations than by the allegations of abuse of the appellant’s children. The trial judge reasoned: It might be different if the accused here were charged with something different, as the Crown pointed out, if it were a charge of break and entry or a charge of theft or a charge of common assault or an assault bodily harm or dangerous driving or all of those, to throw in bestiality with those, that type of charge, might be considered an act which would be inflammatory. [25] In my view, the trial judge erred in principle in refusing to sever the bestiality counts. The remaining bestiality count should be severed at the new trial. The delay in bringing the application was not a relevant consideration in the circumstances. This is not a case where the application for severance is brought for the first time in the course of the trial. In such cases there is a heavier burden on the accused to demonstrate some prejudice has arisen in the course of the trial: R. v. Cuthbert (1996), 106 C.C.C. (3d) 28 (B.C.C.A.) affirmed by the Supreme Court of Canada (1997), 112 C.C.C. (3d) 96; R. v. Cross (1996), 112 C.C.C. (3d) 410 (Que. C.A.), leave to appeal to S.C.C. refused (1997), 114 C.C.C. (3d) vi. In the present case, the application was brought prior to trial. It did not result in any prejudice to the Crown, nor did it interfere with the presentation of the case. [26] Cases like this, where the allegations are particularly sordid and the complainants particularly sympathetic, provide a severe test of our criminal justice system: R. v. R. (A.J.) (1994), 94 C.C.C. (3d) 168 (Ont. C.A.) at 180. There was a heavy onus on the Crown and the trial judge to ensure the appellant received a fair trial. In my view, the trial judge placed too much emphasis on the similarity of the charges and his view that the jury would not be inflamed by hearing the bestiality allegations. The bestiality charges were similar to most of the other counts only in the broadest sense that they involved a form of sexual behaviour. They were of a very different nature in all other ways. There was no need for the bestiality charges to be tried with the more serious counts: there is no nexus between them. Neither incident was necessary for the unfolding of the narrative and the evidence of bestiality was inadmissible on the other counts. Moreover, the jury was already faced with the daunting task of attempting to deal with the many other counts. While objectively less serious than the allegations of sexual and physical abuse, the allegations of bestiality reveal the appellant as a person capable of great depravity who seems to be completely unable to curb his sexual impulses. It was essential that the jury not be unnecessarily diverted from their task by evidence calculated only to show the appellant to be a deviant personality. [27] Joining the bestiality counts with the other counts served only to invite the jury to engage in the forbidden line of reasoning that the appellant was the type of person likely to commit acts of sexual misconduct. Thus, faced with an indictment including these charges, the trial judge should have granted the severance application. [28] There is one further problem with the bestiality counts – the trial judge did not give a limiting instruction on the use of this evidence. Such an instruction is mandatory: R. v. B. (F.F.), [1993] 1 S.C.R. 697 at 733-36; R. v. D. (L.E.), [1989] 2 S.C.R. 111 at 128. It was essential that the jury be instructed that they could not use that evidence with respect to any of the other allegations against the appellant. In particular, the jury should have been told that they could not use the bestiality evidence as proof that the appellant was the sort of person who would commit the other offences charged. [29] The trial judge has the discretion to order a separate trial on different counts. An appellate court will interfere with this exercise of discretion only when the trial judge has failed to act judicially or the ruling resulted in an injustice: R. v. Cuthbert (1997), 112 C.C.C. (3d) 96 (S.C.C.). In my view, the trial judge did not exercise his discretion on proper principles and the inclusion of these charges, especially in the absence of a proper limiting instruction, prejudiced the appellant’s right to a fair trial. [30] As a new trial is required due to misdirection with respect to the use of the evidence of the other counts, I need not decide whether these errors alone would require a new trial. ii. Misdirection on use to be made of evidence of other counts [31] The appellant submits that the trial judge failed to adequately instruct the jury as to the use to be made of the evidence of the different counts and in particular, failed to instruct the jury to deal with each count separately. I preface this discussion by noting that at trial, Crown counsel did not argue before the trial judge that evidence on any particular count was admissible as similar fact evidence with respect to the other counts. It appears that Crown counsel did not even argue that the various counts involving the same complainant were admissible as similar fact evidence in relation to that same complainant. [32] On appeal, Mr. Trotter (who was not Crown counsel at trial), did not attempt to support the charge to the jury on the basis that, in any event, the various counts could be used as similar fact evidence. Accordingly, we did not hear submissions on which counts would constitute similar fact evidence. Thus, it would not be appropriate for me to comment on the matter. [33] The trial judge gave the following instructions concerning the use to be made of the evidence of the various counts. (a) In order to obtain a conviction, the Crown must prove the essential elements of each offence beyond a reasonable doubt. When considering your verdict, do not test each piece of evidence to see if that piece of evidence is proved beyond a reasonable doubt. Consider all of the evidence, the totality of the evidence that you find credible and on that basis decide if the Crown has proved its case. [Emphasis added.] (b) Now, you consider each count separately when you start your deliberations. I am going to give an outline of how I suggest you do it. First of all, what are the charges against the accused? Well, they are many, 38 or 39 in all, and as we come to them I will tell you what they are and what to do with them but I will tell you first that you approach these charges this way. You consider all of the evidence on each charge, the totality of the evidence, then ask yourself if the explanation given by the defence might reasonably be true. If the answer to that question is “Yes” or if you have a reasonable doubt about it, you will acquit the accused on that count. Even if you do not actually believe the explanation given by the accused, you may still be in a state of reasonable doubt about the guilt of the accused, in which case you will acquit the accused on that count because in order to obtain a conviction the Crown must prove each count beyond a reasonable doubt. If you reject the explanation put forward by the defence, that is not the end of the matter, you will then turn to that body of evidence that you find to be credible to see if the Crown has proved its case. [Emphasis added.] (c) I think that covers everything that I have to tell you. I suggest this to you, whoever may be your foreperson, go one count at a time. Take them in whatever order you want, but one count at a time, and if you can get unanimity one way or the other mark either guilty or not guilty beside each count on the indictment. [34] In between the directions I have labeled (b) and (c), the trial judge reviewed each complainant's evidence pointing out the conduct that was referable to each count. The trial judge followed roughly the same format for each complainant. He told the jury of the counts that related to that complainant and referred to the offence in short form. The trial judge then summarized the testimony of the complainant, usually without relating any particular evidence to a particular count. The trial judge also briefly related the defence position with respect to each complainant. An example of the approach can be seen in the instructions concerning D.L.: The final daughter is D.L., at counts 44, 45, 46 and 47. Indecent assault, indecent assault, indecent assault, all indecent assaults. And D.L. would have been seven years old for the first one, eleven years old for the second, for count 45 eleven years old, for count 46 she would have been seven to 13 and count 47 she would have been 14. So her allegations are regarding offences which occurred between the ages of seven and 14. This is the girl that was sat down on the corner of the dresser and said that the accused rubbed his penis on her vagina until he ejaculated. And one time she said the accused asked her if he could insert his penis and she refused, that’s when she was 11. She says she was told not to tell anyone. This is the case with all of them, they were told not to tell anyone. In another incident between eight and 12, ’68 to ’72, the accused would come in her room at night and lift her nightgown and rub his penis on her backside until he ejaculated. It happened a number of times. At the age 14 she remembered when she was grounded. The accused came in the house, started to feel her up, she pushed him away three or four times and this is when the accused said to her, “Why are you pushing me away? You probably let other boys do it, do that to you.” Those are indecent acts, if you believe them beyond a reasonable doubt. The accused denies, again, having done any of that. [35] In his careful and helpful submissions, Mr. Trotter conceded that if the jury were not adequately instructed to treat the counts separately, there must be a new trial. He did not suggest that the proviso in s. 686(1)(b)(iii) of the Criminal Code could be applied. He argued, however, that the instruction in excerpt (b) would be understood by the jury as an instruction to treat the evidence relevant to each count separately. I cannot agree. The instructions taken as a whole at most made it clear that the jury must return a separate verdict in relation to each count. Those directions cannot fairly be read as restricting the evidence relevant to any particular count to that count alone. Nothing in the balance of the charge to the jury would lead the jury to that conclusion. [36] Moreover, such an approach to the evidence is counterintuitive. Most of the complainants were related to each other. Each of the complainants knew at least one other complainant and many of them knew most of the others. Except for B.S., all of them went to the police or were contacted by the police at the same time. All the daughters joined in a single lawsuit against the appellant. Some of the evidence of one complainant clearly was admissible in relation to the counts involving another complainant. For example, the evidence of J.W. that she heard the appellant go into the bed of her sister J.L., if believed, was admissible to prove at least one of the allegations in relation to J.L.. Since the trial judge left the evidence to the jury in bulk, however, without any attempt to isolate the evidence relevant to each count, the jury would have no way of determining what evidence related to what count. In my view, the jury would have no reason not to consider all of the evidence in making their findings of fact. [37] The problem was aggravated by Crown counsel’s jury address. On several occasions she referred to patterns in the evidence of the complainants and consistencies in their evidence. Near the end of her address, Crown counsel expressly invited the jury to use the whole body of evidence as proof of all of the allegations: So I guess one person maybe. Two people maybe. In this instant we have got ten people who suffered at the hands of the accused and some of them are not connected. You have out of those people nine people who were subjected to sexual abuse when they were children. What you have before you is the fact that the accused throughout the 50s, the 60s and the 70s would sexually assault young girls at the time up unto the age of about 14. … If three people told you the exact same thing, you’d have cause to be concerned. What you have in this case is you have in total 14 witnesses but in total ten complainants who have come forward and have told you what happened to them. [38] This ground of appeal is governed by the decisions of the Supreme Court of Canada in R. v. Rarru (1996), 107 C.C.C. (3d) 53 and R. v. B. (F.F.). Those cases, like this, involved indictments charging multiple sexual and other offences and evidence relating to a number of different victims. [39] In Rarru, the accused faced 12 counts involving six complainants. The trial judge initially ruled that the evidence of the various counts was admissible as similar fact evidence and he dismissed a severance application. Prior to the charge to the jury, the trial judge reconsidered his ruling and held that he would instruct the jury that the evidence of each complainant had to be dealt with separately. The trial judge gave the following directions to the jury: Although I have discussed the ingredients of the sexual counts together, I have reviewed the evidence of each of those counts separately, and that is what you must do. Evidence of lack of consent which might convince you with respect to one complainant has little applicability to the issue as it arises on the facts of another count, and you are not allowed to use the evidence on any one count as evidence on another. Of course, some witnesses testified in respect of several counts, which is quite a different matter and quite acceptable. … And I want to repeat to you that in discussing the evidence as it relates to the common ingredients of these counts that I have just gone through with you in the manner that I have, I'm doing it merely for convenience, and you must consider the evidence that relates to each count independently from the evidence that relates to each of the other counts. [Emphasis added.] [40] The trial judge also told the jury that the addresses of counsel accurately stated the law. Crown counsel in that case, like this case, had referred to patterns in the various sexual assaults. In a very brief decision, the Supreme Court of Canada held that these directions were inadequate. Speaking for the court at p. 85, Sopinka J. said: We agree with the reasons of Rowles J.A., dissenting in the Court of Appeal, that the charge to the jury was erroneous. In the circumstances of this case, it was incumbent on the trial judge to instruct the jury, not only that evidence on one count was not to be used on other counts, but further to be warned about the dangers of the potential influence of evidence of numerous alleged criminal acts which were not the subject of a particular count. The charge was inadequate in this respect. These omissions were exacerbated by the invitation to the jury to consider the address of counsel for the Crown. [Emphasis added.] [41] Thus, in a case involving multiple counts and complainants, and where evidence is led of other uncharged misconduct, Sopinka J. identified two essential elements of a charge to the jury. First, when evidence of one count is not admissible as similar fact evidence on the other counts, jurors must be instructed to consider each charge separately and not to use evidence relating to one count as evidence on any of the other counts. In this case, the jury charge does not include this essential element. The charge does not clearly explain to the jurors that they could not use the evidence of all the counts to prove any one count. [42] Second, Rarru requires the trial judge to give the jury a proper limiting instruction regardless of whether evidence of other counts or of uncharged misconduct is admissible as similar fact evidence. The jury charge also fails to meet this standard. Even if the evidence of the various counts had been admissible as similar fact evidence, a limiting instruction was required. The jury had to be warned about misuse of the evidence of criminal and disreputable conduct. I have already referred to this issue in relation to the bestiality counts. It was essential that the jury be instructed that it was not to rely on the evidence of other counts or other uncharged misconduct as proof that the accused is the sort of person who would commit the offence or offences charged: R. v. B. (F.F.) at 733-36 and R. v. D. (L.E.) at 128. [43] In view of these errors, the appeal must be allowed and a new trial ordered. As Mr. Trotter conceded, the proviso in s. 686(1)(b)(iii) of the Criminal Code cannot apply: R. v. B. (F.F.) at 736-38. iii. Failure to adequately present the theory of the defence [44] In the trial judge's jury charge, he reviewed the evidence of each complainant and then set out the defence's theory and the supporting evidence. In most cases, this was relatively straightforward: often the appellant simply denied the incident. Where the defence called evidence in relation to a particular issue, or relied upon parts of the Crown evidence, that evidence was adequately drawn to the jury’s attention. Thus, I would not give effect to this ground of appeal. iv. The verdict was unreasonable [45] There was evidence to support each of the counts upon which the appellant was convicted. For example, there was compelling independent confirmation for the assaults on B.M.. There were frailties with some of the evidence of the sexual assaults. I cannot, however, say that the verdicts were unreasonable or that the jury was not entitled to find the evidence of the complainants credible and reliable: R. v. W.(R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.) at 141-42. v. Misdirection with respect to the civil suit [46] The appellant’s four daughters launched a civil suit against him seeking damages for the assaults he committed. B.M. was also named as a defendant in the action. As I understand it, it was the appellant’s theory that his daughters conspired against him, in part to obtain money from him through this civil lawsuit. Despite being named as a defendant, B.M. supported her daughters in the criminal case. Defence counsel focused on this in his jury address: But this is a curious lawsuit. I will leave the jury to figure out if they think this is a normal way to proceed. How normal is it for one of the defendants to be seated with the four plaintiffs, the four daughters are the plaintiffs, they are suing. One of the defendants, the mother B.M., is seated out here in the jury room, in your room, during the preliminary inquiry of January of 1995, which lawsuit is being discussed by the daughters’ lawyer. They’ve got the – they got one of the defendants sitting in on the discussions about being sued. [47] Defence counsel concluded the address with the submission that the prosecution was motivated by jealousy and greed on the part of the complainants. [48] Crown counsel replied: The reason why B.M. is sitting in the room with her daughters is because she agrees, she agrees that her daughters are entitled to sue the accused for damages, for the damages that he inflicted during the time that he was sexually abusing them and they have a right to do that and I anticipate that His Honour will instruct you on that. They have a right, apart from criminal proceedings, that would have absolutely nothing to do with civil proceedings, a person has a right to sue somebody for damages. [Emphasis added.] [49] Crown counsel continued that theme and concluded with her submission that the lawsuit was evidence of the daughter's determination, not jealousy and greed. [50] The trial judge dealt with the civil suit in his instructions. The appellant objects to the following portions: Now, there was some talk about a law suit in this case. The statement of claim is before you and it is apparent that the four daughters are involved in the law suit. They went to a lawyer some time in 1994 or 1995. The proceedings were commenced in 1995, nearly two years after these charges were laid. Now there are two things here. It has been suggested that they are after money and that’s why they’re testifying as they do. They might say anything for money, because this law suit is there and if this accused is convicted of these offences they are going to end up with a bunch of money. That isn’t so. You could acquit the accused of every one of the counts on this indictment and let him walk out free and they would still be able to pursue their law suit and stand the chance of winning and collecting damages if the civil court is satisfied on a balance of probabilities, not beyond a reasonable doubt but on a balance of probabilities – a lesser onus – that he did the things they claim he did. So that really the law suit is nothing more than a red herring. The other part of it is the fact that the mother is being sued as well as the accused. You heard her testify. Her evidence is that the only reason she is in there is because she is connected with the insurance policy that was on the house at the time and she has to be sued in order to get at the insurance money because the appellant probably doesn’t have enough money to take care of the suit if they get big damages. Well, that is not unusual at all… [Emphasis added.] [51] The trial judge continued on with an example of a child who sues her parent if she is injured in a car accident in order to access insurance money. He then concluded: So the whole business of the law suit should not be given much attention by you. [52] The appellant argues that these comments constituted misdirection and improperly undermined the theory of the defence. [53] In my view, it would have been preferable for the trial judge to merely summarize the positions of the Crown and defence with respect to the lawsuit. The fine points of civil pleading and the burden of proof in a civil case were really not particularly important to resolution of the difficult issues in the criminal case. Having chosen to delve into these issues, however, the trial judge should have been even-handed in his explanation of the law. In Ontario, a criminal conviction is admissible in subsequent civil proceedings and is prima facie proof that the party against whom the conviction was rendered committed the offence: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, (1992) at 1042-45; Demeter v. British Pacific Life Insurance Co. (1983), 43 O.R. (2d) 33 (H.C.J.) affirmed 48 O.R. (2d) 266 (C.A.); and R. v. Duong (1998), 124 C.C.C. (3d) 392 (Ont. C.A.) at 404. While it is true that an acquittal would not have been fatal to the daughters’ civil claim, the judge should have explained that a conviction would constitute a substantial advantage in the civil proceedings. [54] The civil action is not just a “red herring”. The civil action is capable of being some evidence of a motive on the part of the appellant’s daughters and could be relevant to their credibility. Since I would order a new trial on the second ground of appeal, I need not decide whether this misdirection resulted in any substantial wrong. vi. Production of the complainants' telephone records [55] The appellant's sixth issue deals with production of the telephone records. One of the defence's theories was that the complainants, particularly the four daughters, collaborated before providing statements to the police and testifying at the preliminary inquiry. As I understand it, the defence argued either that the complainants had deliberately conspired against the appellant, or that they had unconsciously influenced each other’s recollection of events. Defence counsel hoped that by subpoenaing the long distance telephone records of the complainants, evidence of this collaboration would become clear. [56] Prior to the first trial, counsel for the appellant subpoenaed the telephone records of the complainants J. W. and E.A.. In June 1995, Murphy J. ruled that a subpoena was sufficient for production of these records. Accordingly, some of the telephone records had been produced to defence counsel and were available for use in cross-examining the complainants. Prior to the second trial, counsel for the appellant subpoenaed the telephone records of four other complainants. On this occasion, however, the trial judge ruled that the defence was required to follow the procedure set out by the Supreme Court of Canada in R. v. O’Connor (1995), 103 C.C.C. (3d) 1 to obtain production of the records. O'Connor was decided after the mistrial and the trial judge’s initial ruling. The decision in O'Connor requires that in addition to a subpoena, the defence must file an application with supporting material for production. The complainants, who are the subject of such records, are entitled to receive notice of this application. [57] In the present case, when the defence brought an application for production of the telephone records of the complainants at the outset of the trial, it was dismissed as the complainants had not been served with a notice of application. It was, however, open to the defence to renew the application. For reasons that are not well explained in the record, the application was not renewed until after several of the complainants had testified. The defence, therefore, required both production of the records and leave of the trial judge to recall these witnesses for further cross-examination. Ultimately, the trial judge ruled that the additional records should not be produced: In my humble opinion, having heard the four complainants testify and having heard what they described – their description of what conversations took place, despite rigorous cross- examination, I can not see that admitting the telephone records will have any great significance in proving what the accused submits is a conspiracy to “Get” the accused. None of the four indicated during their cross-examinations or in their examinations- in-chief that there was any such conspiracy and to put all of these telephone records in would be nothing more than to provide material which would encourage speculation by the jury as to what was said or what was not said. The probative value of the records would be tenuous at best and the admission of the records, in my opinion, would tend to divert the attention of the jury from the main issue which they must deal with and that is the truth or otherwise of the allegations by the complainants. For that reason, the application will be dismissed. [Emphasis added.] [58] Mr. Gold, on behalf of the appellant, made two submissions on this issue. First, he argued that the O’Connor procedure had no application to the telephone records as they were not therapeutic records or records containing personal information. Second, he argued that, in any event, the trial judge erred in applying too strict a test for production of the records, and in particular, erred in requiring the appellant to demonstrate some “great significance” in the records. [59] In my view, the trial judge was right to apply the O'Connor procedure. Lamer C.J.C. and Sopinka J. wrote the majority reasons in O'Connor on this issue. Although the case concerned therapeutic records, their reasons are written in broad terms and set out the procedure applicable to the production of all third- party records containing private information. They pointed out that the disclosure obligations on the Crown, as set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326, do not apply to the production of such records that are in the hands of third parties. While, at p. 16 of the reasons, they refer to a “constitutional right to privacy that extends to information contained in many forms of third party records”, I do not read the reasons as limited to records which may engage a constitutional privacy right. The thrust of the majority reasons is to establish two regimes: (1) where private records, even therapeutic records, are in the hands of the Crown, the Stinchcombe disclosure criteria and procedures apply; (2) where private records are in the hands of a third party, however, the O’Connor production criteria and procedures apply.1 Accordingly, the trial judge was correct in requiring the appellant’s trial counsel to comply with the O’Connor procedure. [60] On the other hand, Lamer C.J.C. and Sopinka J. also emphasized that the production procedure must be adapted depending on the nature of the records. At p. 18, for example, they pointed out that it would be open to the trial judge to dispense with the need for a formal application in the interests of justice. In the present case, the trial judge might well have dispensed with a formal application as the defence may have been lulled into a false sense of security by the earlier ruling. The trial judge was correct, however, in insisting that the complainants be given notice as their records were the subject of the application. [61] Once the procedural steps have been followed, the accused must then show that the records are likely relevant. This test, although higher than the test for disclosure, is not an onerous one and was clearly met in this case. Therefore, the records should have been produced for examination by the trial judge at this stage. Next, the judge must examine the records and determine what should be produced to the defence. This second stage requires the trial judge to “examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence” (at p. 23). The application of this test may vary with the nature of the records. Lamer C.J.C. and Sopinka J., borrowing from the reasons of L’Heureux-Dubé J., listed five factors to be considered at pp. 23-24: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question. [62] In the appellant's case, only the first two factors were of any real significance. The third factor — the reasonable expectation of privacy — does not engage the same privacy concerns as the types of records, therapeutic records, considered in O’Connor. The reduced expectation of privacy in these types of records is demonstrated by reference to the relevant Criminal Code provision. Section 492.2(2) permits a justice to issue a warrant to seize telephone records merely on the basis of reasonable suspicion, a standard less than required for a normal search warrant under s. 487. In my view, the appellant met the O'Connor test for production of records. [63] The trial judge’s ruling, however, occasioned no substantial wrong or miscarriage of justice. I have read the transcripts of the cross-examinations of the four complainants. I agree with the trial judge that the cross-examination using the available records had little impact on the credibility of the complainants. The complainants knew each other – five of them were related. There was no dispute that they talked to each other by telephone throughout the relevant period. The records, of course, did not show what they talked about. While it would have been preferable for the trial judge to order production of the remaining records, his failure to do so did not result in a miscarriage of justice. vii. Admissibility of the opinion evidence of Dr. Bray The trial judge’s reasons [64] The final ground of appeal concerns the trial judge’s ruling refusing to permit Dr. Ruth Bray to testify for the defence. Since this question will arise at the new trial, I will deal with it for the assistance of that trial judge, even though I would allow the appeal on other grounds. [65] Dr. Bray is a psychologist in private practice. She was presented by the defence as an expert on memory, sexual abuse, sexual deviance and proper techniques for forensic interviewing. The trial judge held a voir dire to determine the admissibility of this evidence. The defence was only concerned with Dr. Bray’s opinions regarding memory, although she gave some evidence about family dynamics. Dr. Bray testified at length and was vigorously cross-examined. There were difficulties with her evidence: for example, she had not done any research or writing for at least ten years and she did not seem to have any special expertise in the field of memory. Her ability to provide opinion evidence on memory was essentially based on her reading of the current psychology literature and her attendance at some conferences. I have carefully read her testimony on the voir dire. Much of it was confusing and subject to many qualifications. Nevertheless, she did offer opinions on the following subjects: i. A memory by persons from when they were two years old is extremely suspect. ii. The theory that memory is laid down as if the mind was a tape recorder is a common misconception. iii. It is a common misconception that vivid details of the remembered event is a good indicator of reliability and that traumatic events are well-remembered. iv. The reliability of memory depends in part on how often the memory is recalled and rehearsed. [66] The trial judge ruled that Dr. Bray was qualified as an expert. He excluded her testimony, however, because it failed to meet the test in R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.). The trial judge reasoned: Now, in this case, I think that although [defence counsel] urges that what the evidence is being tendered for is to enable the jury to have some idea of how the human mind works when it is remembering things, the real purpose of introducing it, I believe, is to confuse the jury to the point that they would wonder “how can we believe any witnesses who are attempting to recall, or swearing that they do recall, events which occurred 20, 30 or more years ago?” That, I think is the underlying issue and to that extent, I believe, the evidence could be described as misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. … [As to necessity, people] deal with assessing the worthiness of other people’s memories every day. I do not believe, in this type of case, which is not complicated at all, that a long lecture on the way we remember things and what comes into play in arriving at our memories is going to be of any real assistance to the jury and I haven’t even mentioned the implications of the cost benefit analysis. That is the length of time which we would be consuming in receiving this evidence, having cross-examination and in view of the differences of opinion, professional opinion, mentioned by the witness herself and expended upon by counsel for the Crown, there is no doubt in my mind that I would be confronted then with witnesses with differing views and the jury would be left to make a decision as to which expert they wished to believe. The thought of that horrifies me and I am sure it would horrify the jury. [67] In summary, the trial judge appears to have excluded the expert evidence because: i. it was calculated to confuse the jury into believing that no one could have a memory of a 20 or 30 year old event; ii. the case was not complicated and lay persons deal with the assessment of memories every day; iii. since there is a debate amongst experts about how memories work a great deal of time would be expended on cross- examination and the Crown having to call its own expert; and iv. the jury would have to decide which expert to believe. Analysis [68] As the trial judge held, the resolution of this case depends on the application of the criteria for admissibility of expert evidence as explained in Sopinka J.'s reasons in Mohan. Before applying these criteria, however, I shall make some preliminary comments. First, the record in this case is not satisfactory. Although there was a full airing of Dr. Bray’s testimony, she did not present herself in this case as particularly well qualified to provide the opinions she offered. In the result, some of her conclusions are not well expressed and her testimony tends to be confusing in parts. [69] Second, while the charges included allegations going back many years and even decades, this does not appear to be a case of so-called recovered memories. Further, there were no circumstances, such as suggestive interviewing techniques or indications of ideas of abuse having been planted in the minds of the complainants. In such cases, the admissibility of expert evidence about memory appears to be well settled. [70] In this case, the principal concern is whether the expert evidence about memory is admissible in a case where many of the allegations of wrong-doing go back several decades and relate to events which occurred when the complainants were children – in some cases very young children. In Mohan, Sopinka J. held that the admission of expert evidence depends on the application of the following criteria: a) a properly qualified expert; b) relevance; c) necessity in assisting the trier of fact; d) the absence of an exclusionary rule. a) A properly qualified expert [71] The trial judge found Dr. Bray to be a qualified expert. Despite my own reservation about the quality of some of her testimony, the evidence supports the view that she was capable of giving expert opinion evidence in some areas of psychology. Her lack of practical experience and the fact that she had not written in the area went to the weight of her evidence, not its admissibility: R. v. Russell (1994), 95 C.C.C. (3d) 190 (Ont. C.A.) at 191, applying R. v. Marquard (1993), 85 C.C.C. (3d) 193 (S.C.C.) at 224. [72] However, that does not conclude the issue. R. v. McIntosh (1997), 117 C.C.C. (3d) 385 (Ont. C.A.) concerned expert opinion on the frailties of eyewitness identification, although some of the expert’s opinion dealt with memory more generally. In McIntosh, Finlayson J.A. held that the criterion of a properly qualified expert includes the concept that the expert is testifying about a recognized body of scientific knowledge. Finlayson J.A.'s reasons in McIntosh clarify this branch of the test. In McIntosh, Finlayson J.A. was particularly concerned that this aspect of expert evidence be kept in mind where the parties tender expert evidence from a psychologist. He explained the requirement of a recognized body of scientific knowledge as applied to psychology, at p. 392: Paraphrasing freely from the definition of "science" in The Shorter Oxford English Dictionary on Historical Principles, it seems to me that before a witness can be permitted to testify as an expert, the court must be satisfied that the subject-matter of his or her expertise is a branch of study in psychology concerned with a connected body of demonstrated truths or with observed facts systematically classified and more or less connected together by a common hypothesis operating under general laws. The branch should include trustworthy methods for the discovery of new truths within its own domain. I should add that it would be helpful if there was evidence that the existence of such a branch was generally accepted within the science of psychology. [73] This court has already held that at least three aspects of the science of memory are the proper subject of expert testimony: R. v. Norman (1993), 87 C.C.C. (3d) 153 at 165. In Norman, Finlayson J.A. held that both the Crown and defence psychiatrists were properly permitted to testify about the role therapy can play in the retrieval of memory. Second, Finlayson J.A. accepted, at pp. 166-68, that the Crown psychiatrist was entitled to testify about “flashback” memories and the means of evaluating the reliability of such memories. Third, he accepted, at p. 168, that it was proper for the defence psychiatrist to testify about the nature of recovery of memory repressed through post traumatic stress disorder. [74] In Norman, the experts were psychiatrists and it may be that some of the opinions provided, especially concerning the psychiatric condition of post traumatic stress disorder, can only be provided by a psychiatrist. Other aspects of the testimony, such as the influence of therapy and the means of testing the reliability of the flashback memories, also fall within the expertise of a qualified psychologist. Indeed, in Russell, this court held that a psychologist could testify about human memory and about repressed memory of sexual assault victims in particular. [75] Similarly, the Supreme Court of Canada addressed evidence regarding some aspects of memory in R. v. R. (D.) (1996), 107 C.C.C. (3d) 289. In R. v. R. (D.), the court concluded that the trial judge erred in refusing to admit certain evidence from a clinical psychologist concerning the nature of childhood memory. In that case, the accused were the birth parents of three children who claimed to have been sexually abused. The allegations came to light after the children were placed in a foster home. There was evidence that the children had also been abused at the foster home. The defence psychologist testified that children have two types of memory: visual memory, which is based on experience, and verbal memory, which is learned. Major J., writing for the majority, held that the trial judge erred in refusing to admit the psychologist's evidence regarding what the complainant children told him, and his conclusions on the reliability of the children’s memories of specific events. [76] Dr. Bray's proposed testimony is more problematic, if only because the issue was not directly addressed at the trial. In fairness to Dr. Bray and defence counsel at trial, they did not have the benefit of the reasons in McIntosh. On the basis of this record, however, it is my view that the defence failed to establish that several of the areas about which Dr. Bray proposed to testify were proper fields of expert evidence. I emphasize that I reach this conclusion solely on the basis of the testimony of this particular expert in this case. My conclusion should not be seen as a broad condemnation of the kind of evidence Dr. Bray proposed to give. Aspects of the testimony that Dr. Bray proposed to give could fall within the test enunciated in McIntosh. [77] To illustrate, one part of the Dr. Bray's testimony fell squarely within the McIntosh test: J. L. claimed to have very vivid memories of events from when she was two years of age. Dr. Bray was asked about the memory of a two-year old and gave this evidence: One of the things that I usually go to if I am talking about what a two-year-old can remember is psychologists in studying development have developed a great number of tests and in the tests every test involves memory items and short term memory in two-year-olds is limited but accurate but the general agreement in learning in mental circles is that most people at two years old may, as I say, in very short term memory they can be accurate and, obviously, what they store and what they recall is limited by their vocabulary and their ability to express themselves but after they reach adulthood they seldom – most people don’t remember anything before five and there is an argument about whether it is four or five but between four to eight we develop cognitively, we develop our ability to understand reason and, obviously, our language improves and so that up until the point of eight that the ability to observe things, understand them, then put them into our memory and hold them in the memory and not have them distorted by events between the time that they happen until we get them out, it is questionable and, obviously, varies due to a variety of factors… [78] Dr. Bray proceeded to describe her own work with infants and demonstrated that she possessed a particular expertise in this area. Thus, this aspect of her testimony met all the facets of the test in McIntosh. She was drawing on a body of knowledge from developmental psychology about which there was a broad consensus verified by testing using trustworthy methods. She explained the theory underlying the observed facts. In cross-examination, Dr. Bray conceded that some clinicians dispute the theory and she explained the research that would be necessary to verify the beliefs of the clinicians. The fact that a scientific theory is open to debate, however, or that exceptional cases fall outside the norm, does not preclude the admissibility of opinion evidence based on that theory. [79] A criminal case is not the ideal forum for resolving difficult scientific questions. But, if such questions spring from a recognized body of scientific knowledge that bear upon the reliability of important pieces of evidence, whether Crown or defence, it is no solution to ignore the controversy and shield the jury from difficulties. We do not aid the search for truth by pretending there is no dispute or depriving the defence of the opportunity to challenge the reliability of evidence through presentation of legitimate scientific evidence. As McLachlin J. observed in R. v. Seaboyer; R. v. Gayme (1991), 66 C.C.C. (3d) 321 at 389: The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. As one writer has put it [David H. Doherty, " 'Sparing' the Complainant 'Spoils' the Trial" (1989), 40 C.R. (3d) 55 at 67]: If the evidentiary bricks needed to build a defence are denied the accused, then for that accused the defence has been abrogated as surely as it would be if the defence itself was held to be unavailable to him. In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. The defence which the law gives with one hand, may be taken away with the other. Procedural limitations make possible the conviction of persons who the criminal law says are innocent. [80] In contrast, Dr. Bray’s evidence about the impact of trauma on memory suffers from the frailties identified in McIntosh. In response to defence counsel's questioning regarding what “the field of psychology” says about trauma “assisting or not assisting memory”, Dr. Bray responded: The most recent review done by Doctor Schacter and this reviews the articles, most of the articles that I have read in the past, and I feel he expresses it much better than I do but it is certainly, I believe this, when a person has not endured a trauma but believes to have, meaning that they believe they had endured this trauma, chances are that he or she feared it, imagined it or heard about it. The general principle Doctor Schacter developed in his earlier chapters that memories are not simply activated pictures in the mind but complex constructions built from multiple contributors. Also applies to emotionally traumatic memories. [81] When defence counsel asked the question again in a slightly different form, Dr. Bray gave a different answer: … I am saying that in terms of learning, we have found in learning in this that if a person is aware and is aroused to a certain extent, it may improve their memory while they’re learning certain things. If they’re aroused too much, if the situation is truly traumatic, such as a car accident or some terrible thing, what happens is their attention and their focus is narrowed to an extent that they don’t really observe the events fully and process it fully and that their memory is usually of a non-specific sort rather than an accurate memory of what is happening but some traumatic events might, indeed, improve memory but certainly there has been a lot of study done, on these things about flashbulb memories, traumatic situations, and I have a number of examples. [82] Although Dr. Bray may be qualified as an expert, this portion of her evidence lacks connection to a recognized body of scientific knowledge. If Dr. Bray was drawing upon any branch of study in psychology “concerned with a connected body of demonstrated truths or with observed facts systematically classified and more or less connected together by a common hypothesis operating under general laws” it was not apparent from her evidence. Such a branch of study may exist, but Dr. Bray’s evidence does not make this clear. For instance, Dr. Bray failed to indicate the methods used to test the hypothesis she refers to and, based on her testimony, it seemed nothing more than anecdotal. Similarly, she failed to indicate the theory or scientific learning underlying the observation that people who falsely come to believe they have been subject to trauma usually first feared, imagined or heard about it. Moreover, her answer with respect to the effect of trauma seems to express little more than a personal opinion that trauma sometimes makes the memory more reliable and sometimes less reliable. Further, Dr. Bray did not indicate any science behind these observations, or any way in which a trier of fact might distinguish the two entirely different outcomes. [83] In any event, even if this evidence does meet the threshold, I question its materiality to this case. Defence counsel certainly did not lay any apparent ground work with respect to the complainants that would provide a context in which Dr. Bray's answers would be of assistance to the trier of fact. Again, I am not foreclosing evidence concerning the effect of traumas on memory in a proper case. As Dr. Bray's evidence on this point was not material to an issue in the case and was not adequately connected to the scientific basis which supports it, it was properly excluded. b) Relevance [84] As Sopinka J. notes in Mohan, relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Sopinka J. refers to two aspects of the relevancy criterion: probative value and "legal relevancy". Probative value is the tendency of the testimony to establish a fact in issue. Mr. Trotter did not dispute that Dr. Bray's testimony has some probative value on a fact in issue. I agree. Although, as explained above, some of Dr. Bray's evidence did not relate to a material issue and was therefore irrelevant, other parts of her testimony would have gone to the reliability of some of the complainants' evidence. [85] The second aspect referred to by Sopinka J., "legal relevancy", is a cost benefit analysis. Sopinka J. described the inquiry to be undertaken, at p. 411, in these terms: This further inquiry may be described as a cost benefit analysis, that is ''whether its value is worth what it costs'': see McCormick on Evidence, 3rd ed. (1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule: see R. v. Morris (1983), 7 C.C.C. (3d) 97, 1 D.L.R. (4th) 385, [1983] 2 S.C.R. 190 (S.C.C.). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing the admissibility of expert evidence. [Emphasis added.] [86] As I understand this passage, expert evidence that has some probative value to a fact in issue will nevertheless be held to be inadmissible if its prejudicial effect outweighs its probative value. In weighing the evidence the trial judge must pay particular attention to whether: 1. the evidence would involve an inordinate amount of time that is not commensurate with its value; 2. the evidence is misleading in the sense that its effect on the jury is out of proportion to its reliability. [87] A further concern noted by Sopinka J. with respect to expert evidence is the danger that the evidence will be misunderstood and distort the fact-finding process. As he explained at p. 411: “Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.” [88] In my view, however, a trial judge should be particularly cautious in excluding expert defence evidence on the basis of a cost benefit analysis. The exclusion of logically relevant evidence on these grounds is an aspect of the general exclusionary rule enunciated in Morris. As McLachlin J. subsequently explained in Seaboyer, however, the exclusionary rule only operates to exclude defence evidence where the prejudicial effect of the evidence substantially outweighs its probative value. [89] The Northwest Territories Court of Appeal made a similar point in R. v. Bell (1997), 115 C.C.C. (3d) 107 at 118 in relation to the necessity criterion: Where, as here, expert evidence is offered by the defence in its efforts to make full answer and defence, a trial court should not impose, as noted in Mohan, too strict a standard for the necessity of such evidence, especially where as here the witness recognized the need to avoid crossing into the jury's domain. In R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.) at page 391, McLachlin J., on behalf of a majority of the Court, noted the general attitude to evidence offered by an accused: Canadian courts, ... have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. [90] Nevertheless, as Sopinka J. explained, the rule retains a particular significance for expert evidence because of the greater danger of misuse of that evidence and therefore the greater likelihood that the evidence will distort the fact- finding process. This was a legitimate concern with some of Dr. Bray’s evidence, if only because she was unable to articulate the practical implications of some of her opinions. I have mentioned that Dr. Bray would have testified that it is a misconception that memory is like a tape-recorder. The following is a portion of that testimony: … [O]ur understanding, our experience, our ability to, well, conceptualize is the best word I can use, has a lot to do with what we remember, how long we remember it and in what way we are able to bring it back but one of the things that is really important to look at in adult memory as well as in children’s memory is this idea, as [defence counsel] said, that memory isn’t like a tape recorder, that memories aren’t simply activated pictures or sounds in the mind, they are complex constructions built from multiple contributors so that it is not just what went in on the first start, it’s how did it go in, what – was it correctly interpreted on the first start, then once it’s in, how well was it stored and what factors might have influenced it over the years and then when the person is recalling it, like one of the things I think that most of us do is when we’re children, we’re not aware that certain things are negative and bad but when we’re older we’re very aware of that and if our recollection is that something bad happened as a child, we had a bad feeling, that we start to look back on those situations and reinterpret them and focus them differently than they were when they went in. But frequently children will not react when certain things happen, like someone is killed in front of them, they don’t react as an adult would because they don’t understand death. But when they think about it when they’re older, they recollect seeing the body there and now they’re interpreting it in terms of how they feel about death and they will frequently say things like, “I was terribly upset,” and yet people that were there at the time will say, “The child didn’t react,” and probably the child didn’t react because the child wasn’t really aware and you can tell from the kind of questions the child asked at the time whether he is reacting to the horror of the people around him or the horror of the actual situation. [91] As I understand it, Dr. Bray is saying that adults remember childhood events through the filter of accumulated experience and it is wrong to think of an adult as being able to reliably play back a childhood memory as if it were a piece of audio tape. I have no doubt that this is a valuable insight, but, presented in the form of expert evidence it takes on an aura that suggests that science has found that all childhood memories are inherently unreliable. I do not think that is what Dr. Bray intended to say. She was, in my view, doing nothing more than explaining why a trier of fact must be cautious about relying upon adult memories of childhood impressions. The need for that caution can adequately be conveyed to the jury in the trial judge’s charge. Finlayson J.A. made this point in McIntosh when dealing with the proposed expert evidence in that case about the frailties of cross-racial identification, at p. 395: This is not to say that a reminder as to cross-racial identification is not appropriate in a case where it is an issue. However, the argument that impresses me is that such a reminder from the trial judge is more than adequate, especially when it is incorporated into the well-established warnings in the standard jury charge on the frailties of identification evidence. Writings, such as those of Dr. Yarmey, are helpful in stimulating an ongoing evaluation of the problem of witness identification, but they should be used to update the judge's charge, not instruct the jury. I think that there is a very real danger that such evidence would "distort the fact-finding process". [Emphasis added.] [92] I will return to this issue in the sub-section "The Charge to the Jury". What might have been of real assistance in this case is evidence, if it exists, that science has learned that special frailties attend the reliability of very old memories, frailties not associated with more recent memories with which the law is more familiar. For example, in R. v. R.(D.) (1995), 98 C.C.C. (3d) 353 (Sask. C.A.) reversed on other grounds (1996), 107 C.C.C. (3d) 289 (S.C.C.), the Saskatchewan Court of Appeal held that the Crown was properly permitted to lead the evidence of a child psychiatrist about the development and working of memory in children. In the course of her testimony, the psychiatrist testified that children three and four years old can have memories of events but that it is difficult for children under ten to place events in sequence and in time. She also testified that if a child is required soon after the event to repeatedly recount it, the memory of it might become consolidated and even more reliable. If that area is a proper subject of expert testimony, I can see no basis for excluding the defence calling evidence on the same issues. For example, why should the defence be precluded from calling evidence on the impact on the reliability of the memory where the children do not repeatedly recount the event but rather try to put the memories out of their mind? [93] Furthermore, the trial judge should be cautious about excluding expert evidence simply because the field is of some complexity and may lead to both parties calling experts. In my view, that is not a sufficient ground to exclude the evidence and is not the kind of undue expenditure of time about which Sopinka J. was concerned. We do not ensure the continuing vitality of the jury system by underestimating the intelligence of jurors. Finlayson J.A. addressed the argument that experts testifying in a DNA case should not be permitted to use frequency numbers, rather they should be confined to express an opinion of the significance of a match in qualitative terms such as “rare” or “common” in R. v. Terceira (1998), 123 C.C.C. (3d) 1 (Ont. C.A.), leave to appeal to the Supreme Court of Canada submitted to the Court June 29, 1998 (Court File 26546). It was argued that the probative value of this evidence was outweighed by its potential for unfair prejudice. Finlayson J.A. rejected this argument by reference at p. 20 to the decision of Dickson C.J.C. in R. v. Corbett (1989), 41 C.C.C. (3d) 385 (S.C.C.) at 400-1: 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. [Emphasis added.] [94] The fact that the jury would have to decide which expert to believe is not a reason to deprive the jury of the information the experts might provide. A jury’s function sometimes involves deciding between different experts. Regardless, this trial was not going to be a trial of experts. The primary evidence was given by the complainants, the other witnesses to the events, the appellant and his witnesses. The role of the experts would have been to assist the jury in assessing the reliability of that evidence. [95] To conclude, the portions of Dr. Bray’s evidence which represent only a general discussion about the memory process and are unrelated to any special problems in this case were properly excluded on grounds of relevancy. Such evidence would not have made the evidence of the Crown witnesses any more understandable for the jury. c) Necessity [96] The most problematic aspect of Dr. Bray’s testimony was whether any of it met the necessity requirement, notwithstanding the relatively relaxed standard of necessity adopted in recent cases. Sopinka J. explained the test for necessity in Mohan at p. 413: What is required is that the opinion be necessary in the sense that it provide information ''which is likely to be outside the experience and knowledge of a judge or jury'': as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher v. Smith, [1931] 4 D.L.R. 102, at p. 116, [1931] S.C.R. 672 (S.C.C.), this court, quoting from Beven on Negligence, 4th ed. (1928), p. 141, stated that in order for expert evidence to be admissible, ''[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge''. More recently, in Lavallee, supra, the above passages from Kelliher and Abbey were applied to admit expert evidence as to the state of mind of a ''battered'' woman. The judgment stressed that this was an area that is not understood by the average person. [97] In R. v. Lavallee (1990), 55 C.C.C. (3d) 97 (S.C.C.), the Crown's primary submission was that in matters dealing with human nature or human experience the jury can serve as their own experts and thus, expert psychiatric evidence is not necessary. Wilson J. cautioned against excluding such expert evidence at pp. 111-12: The need for expert evidence in these areas can, however, be obfuscated by the belief that judges and juries are thoroughly knowledgeable about "human nature" and that no more is needed. They are, so to speak, their own experts on human behaviour. This, in effect, was the primary submission of the Crown to this court. The bare facts of this case, which I think are amply supported by the evidence, are that the appellant was repeatedly abused by the deceased but did not leave him (although she twice pointed a gun at him), and ultimately shot him in the back of the head as he was leaving her room. The Crown submits that these facts disclose all the information a jury needs in order to decide whether or not the appellant acted in self- defence. I have no hesitation in rejecting the Crown's submission. [98] As I have noted above, this court and the Supreme Court have previously held that, in some circumstances, expert evidence from psychiatrists and psychologists about the process of human memory is admissible as it is relevant and necessary. For example, in R. v. R. (D.) the Supreme Court held that a clinical psychologist called by the defence should have been permitted to testify about the types of childhood memories. Major J., at pp. 303-4, applied the reasoning of McLachlin J. in R. v. Marquard: … [t]here is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. [Emphasis added.] [99] Major J. then explained the need for the defence expert’s evidence in that case: Dr. Elterman's testimony was relevant to the issue of the reliability of the children's memories of their birth parents, memories which he suggested had been "learned'' and which could not be independently recalled. The credibility of the children was central to the disposition of the case, and considering the nature of the children's evidence, any explanation of their otherwise incredible behaviour could only aid the trier of fact in accurately assessing their credibility. Dr. Elterman's testimony should have been admitted as an evidentiary basis upon which the children's credibility could have been judged. [Emphasis added.] [100] As Major J. notes, there were “incredible” aspects of the behaviour of the children in that case, which the expert’s evidence might help explain. While the facts in R. (D.) are particularly bizarre, I do not read the reasons in that case as limiting the admissibility of expert evidence on memory to such bizarre cases. In any event, there were also some unusual aspects of this case that expert evidence might help explain. I have already mentioned the unusual memory feats of J.L. In addition, all of the daughters were testifying to some events alleged to have taken place when they were under ten years of age, but which were not discussed until 20 to 30 years later. Until 1992, there was nothing to suggest the serious and multiple allegations that were made. In my view, expert evidence about the nature of childhood memory and the effect of this lengthy delay on the reliability of those memories would have been helpful as such evidence goes beyond the ordinary experience of the jury. [101] In McIntosh, Finlayson J.A. held that the trial judge properly rejected the expert testimony in that case. He described the testimony, at p. 394, as directed to “instructing the jury that all witnesses have problems in perception and recall with respect to what occurred during any given circumstance that is brief and stressful.” Accordingly, the expert was not testifying to matters “that are outside the normal experience of the trier of fact [but] reminding the jury of the normal experience.” Some of Dr. Bray’s testimony was of a similar nature and properly excluded by the trial judge such as her evidence about the effect of trauma on memory. However, other parts of her evidence, especially about very early childhood memory of sexual abuse, are outside the normal experience of the trier of fact. Provided such evidence can meet the threshold test of being a proper subject of expert testimony, it meets the criteria of relevancy and necessity. d) The absence of an exclusionary rule [102] The only exclusionary rule suggested in this case is the discretion of the trial judge to reject otherwise probative evidence where its prejudicial effect outweighs its probative value. As noted, in Mohan, Sopinka J. held that this rule could be included in the analysis either as an aspect of legal relevancy under the relevancy criterion, or under this heading. As I have chosen to deal with this aspect of Dr. Bray’s evidence under the relevancy heading, I need not repeat that discussion. I would, however, make this comment: Mr. Trotter submitted that Dr. Bray’s evidence should be rejected on the basis that she presented as “gospel” opinions on matters that were highly contentious. He also described memory as a “political” issue which divides experts. Neither ground would provide a valid basis for excluding proper expert evidence. On my reading, Dr. Bray did not present her views as if there were no room for legitimate debate. In the course of a lengthy cross-examination, Dr. Bray readily conceded differences of opinion on some of the matters to which she testified, although she adhered to her opinion. That is not an unusual occurrence. In fact, it would be surprising if all experts agreed on all matters, especially on matters as elusive as human psychology. As to the “political” aspect of the debate, Dr. Bray testified that clinicians tend to take different views from experimental psychologists and explained why this may be. I do not think it is beyond the capacity of a jury to consider questions of professional bias in deciding what weight to attach to expert evidence. [103] To conclude, in my view, the trial judge erred in excluding all of Dr. Bray’s evidence. Parts of her evidence, such as the reliability of memories of events which occurred when the witness was an infant, should have been admitted. On the other hand, some of Dr. Bray’s evidence, as it was led at this trial, was properly excluded as it did not meet the Mohan test. On the new trial, the defence, with the assistance of the McIntosh decision, may be able to satisfy the trial judge that the proffered evidence is a proper subject for expert opinion. That, of course, will be for that trial judge to determine. THE CHARGE TO THE JURY [104] The appellant did not raise the adequacy of the charge to the jury as a separate ground of appeal. However, picking up on comments by Finlayson J.A. in McIntosh, Mr. Gold argued that if the trial judge was not prepared to admit some of the expert evidence, he should have at least incorporated some of its information into the jury charge. This submission raises practical concerns. The trial judge charged the jury as follows: There was one other thing that I have to tell you about and that is in this case more than in most you have the evidence of girls, girls who are relatively young at the time offences were committed – remembering those offences and testifying about them with no supporting evidence in most cases. In some cases I have referred to where there was evidence to support but in most cases it is their word against their dad’s word or in the case of B.S., his word against his step-father’s word. Not in the case of R. – it’s not her dad – but her evidence relates to events which allegedly occurred when she was ten years old. All of these offences allegedly occurred when these girls were in the range – in their early teens or late nine to ten, some of them even go back to the ages four and five. I mentioned that during the course of my address. Two of them were when the complainant was two years old. Now, you have to view that evidence carefully because you know – and again we are talking common sense – you know the ability of a person to recall something that occurred many years ago when you were a toddler, when you were an early teen and so on. You will know that. Maybe you won’t know at the age of two but certainly by the age of nine or ten, 12, 14, you will know whether or not something happened to you that you can remember clearly, particularly if it was of a traumatic nature, something out of the ordinary, something that you wouldn’t expect. You might be able to remember that better, you might not be able to. That is your experience. All I am saying is that you should be careful when you consider that evidence – view it closely. [Emphasis added.] [105] Some of Mr. Gold’s submissions as to the state of knowledge of memory are not beyond controversy. They are not easily categorized as matters about which a trial judge could take judicial notice: see D. M. Paciocco, "Judicial Notice in Criminal Cases: Potential and Pitfalls" (1997), 40 Crim. L. Q. 35. In this sense, they differ from the example provided by Finlayson J.A. in McIntosh concerning cross-racial identification. Nevertheless, some of the special problems with cases relying upon memories of events from the distant past should be drawn to the jury’s attention. This is properly part of the trial judge’s duty to warn the jury about the frailties of particular kinds of evidence such as identification evidence. [106] In this case, the jury charge could have been constructed so that it was of more assistance to the jury. In particular, the trial judge ought to have cautioned the jury that their own experience and common sense might betray them in the very unusual circumstances this case presented. While jurors may have had occasion to remember back to events in their distant past it is unlikely that they had the opportunity to independently verify those memories. The task of assessing the reliability or accuracy of memories on a daily basis is different from the very rare event the jury was called upon to undertake in this case — to assess the accuracy and reliability of memory of events that allegedly occurred 30 to 40 years earlier. DISPOSITION [107] Accordingly, I would allow the appeal from conviction, set aside the convictions, and order a new trial. The new trial will be on the charges upon which the appellant was convicted. In view of this disposition, I need not consider the appeal from sentence. RELEASED: October 10, 1999 _______________________________ 1 This trial was held prior to the enactment of ss. 278.1 to 278.91 of the Criminal Code, which deal with personal information records as defined in s. 278.1.