R. v. F., D.S.

R. v. F., D.S. Collection Decisions of the Court of Appeal Date 1999-03-09 Docket numbers C27704 Judges Morden, John Wilson; Austin, Allan McNiece; O’Connor, Dennis Subject Criminal Decision Content DATE: 19990309 DOCKET: C27704 COURT OF APPEAL FOR ONTARIO MORDEN A.C.J.O., AUSTIN and O'CONNOR JJ.A. BETWEEN: ) ) Anil K. Kapoor HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Scott C. Hutchison ) for the respondent D.S.F. ) ) Appellant ) ) Heard: December 3, 1998 ) O’CONNOR J.A.: [1] After a trial by Simmonds J. and a jury, the appellant was convicted on ten counts in an indictment alleging that he had assaulted and abused his wife during a period of approximately one year. 1 The appellant was sentenced to a term of imprisonment of three and one-half years. [2] The appellant appeals his convictions and submits that the trial judge erred in the following four respects: (a) in admitting evidence of discreditable conduct of the appellant that did not form part of the allegations in the indictment; (b) in admitting expert evidence relating to the behavioural characteristics of women who report living in abusive relationships; (c) in instructing the jury on the issue of consent under s. 265(3)(b) of the Criminal Code with respect to the count of sexual assault; and (d) in instructing the jury on the issue of self-defence on a charge of assault with a weapon. [3] For the reasons set out below, I would dismiss the appeal. FACTS [4] The appellant and complainant were married in August 1993. After their honeymoon, they moved into a house that they had purchased, and lived together until the complainant left the appellant in early August 1994. The ten charges were based on allegations made by the complainant of abuse on five separate occasions during the time they lived together. [5] The complainant testified that in November 1993 the appellant became angry when he learned that she had given a key for the house to her brother. He held a knife to her throat and threatened to kill her. The complainant disclosed this incident to her sister-in-law and mother-in-law the same night it occurred, and to a priest about a month later. She did not report it to the police until August 5, 1994, shortly after she had left the appellant. [6] The second incident occurred in April 1994. The complainant testified that she entered the bedroom and heard the appellant making sexual comments over the telephone. The appellant hung up, but the complainant took the phone, pushed the redial button and screamed at the woman to leave her husband alone. The appellant punched the complainant a number of times with a closed fist. The next night the complainant went to a hospital where the doctor found that there was substantial bruising of the complainant’s hand. When asked about the origin of the injury to her hand by the doctor and later by her brother, she stated that she had fallen down a flight of stairs. The complainant did not report this incident to the police until August 5, 1994. [7] Next, the complainant testified that in July 1994 when she and the appellant were driving home from a visit with her brother, the appellant hit her with his hand. Later, at home, he held her on a loveseat for half an hour and repeatedly head- butted her. The complainant tried to leave a number of times but the appellant prevented her from doing so. These events were not reported to the police on August 5, 1994 when the complainant reported other abuse. The complainant testified that in December 1994 she had a flashback, after which she first reported this incident to the police. [8] The fourth incident about which the complainant testified occurred on August 2, 1994. In the course of an argument, the complainant waved kitchen tongs at the appellant and said she felt like shoving the tongs down his throat. The appellant grabbed the complainant and threw her up against the fridge. He took the tongs and jammed them into her neck causing her neck to bleed. The appellant put the complainant in a headlock, threw her to the floor and punched and kicked her for about 10 minutes. The complainant reported this incident to the police on August 5, 1994. A week later, the complainant went to a walk-in clinic, and the doctor found that she had a crusted scab on her neck. The complainant told the doctor about the incident that caused the injury. [9] Lastly, the complainant testified that on the night of August 3, 1994 she was in bed. The appellant got into bed and started to fondle her breasts. She told him not to touch her. When he tried to feel between her legs, she jumped out of bed and said she was going downstairs. The appellant replied, “if you leave now I’ll kick both you and your brother out.” The complainant started crying and got back into bed. The appellant held her hands behind her head and had sexual intercourse with her. The complainant testified that she did not consent to the intercourse. She did not report this incident to the police until August 9, 1994. [10] At trial, the position of the defence was that the complainant was not a credible witness and that the events that she described either did not happen at all or did not happen the way she described them. In arguing that the complainant was not credible, the defence attached importance to the complainant’s delay in reporting some of the incidents set out above, to her inconsistent description of the cause of the injuries to her hand in April 1994 and to the fact that she remained in the marital relationship for a considerable time after some of the incidents about which she later complained. [11] The complainant’s explanations for not immediately leaving the relationship and disclosing the abuse were not complicated. In some instances, she explained, she was embarrassed, in others that she was frightened, and on another occasion she thought the appellant would change. [12] The appellant did not testify. ANALYSIS 1. Evidence of Discreditable Conduct [13] The appellant submits that the trial judge erred in permitting the complainant to testify about abusive behaviour of the appellant that was not included in any of the allegations covered by the ten counts in the indictment. The appellant argues that the prejudicial effect of this evidence of discreditable conduct outweighed any probative value it had in establishing that the appellant was guilty of the offences with which he was charged. [14] In this regard, the complainant testified that shortly after the marriage, the appellant started calling her names and using abusive language. Within the first few months of the marriage, he began to push and shove her and sometimes hit her. After the incident with the knife in November 1993, the appellant’s conduct became worse; the appellant would punch, slap and kick her at least once a week. The complainant also testified that although the couple had consensual sexual relations throughout the marriage, on many occasions the appellant had sexual intercourse with her without her consent. [15] Further, the complainant described the appellant as a very controlling person in dealing with the couple’s financial and social arrangements and also as a person who frequently became angry. She testified that as a result she was frightened of the appellant. [16] In R. v. B. (L.); R. v. G. (M.A.) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.) at p. 490 Charron J.A. set out the principles which govern the admissibility of evidence of discreditable conduct: Because of the inherently prejudicial nature of evidence of discreditable conduct it is subject to a general exclusionary rule unless the “scales tip in favour of probative value” (R. v. Morin, supra, at p. 368) [[1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193]. The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters. 1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused? 2. If so, is the proposed evidence relevant and material? 3. If relevant and material, is the proposed evidence discreditable to the accused? 4. If discreditable, does its probative value outweigh its prejudicial effect? [17] In this case there is no dispute regarding the first and third criteria. The evidence in issue described conduct of the appellant and was discreditable to him. The appellant argues, however, that this evidence ought to have been excluded under both the second and fourth prongs of the test in B. (L.). Relevance and Materiality [18] In B. (L.), Charron J.A. described the relevance and materiality of evidence at p. 492 in the following manner: It is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence” (Paciocco & Stuesser, supra, at p. 19 [Essentials of Canadian Law: The Law of Evidence (1996)]). It is material if it is directed at a matter in issue in the case. … Generally, this basic threshold of relevance and materiality can be tested by asking what inference is sought to be made from the proposed evidence and whether it has some tendency to advance the inquiry before the court. [19] In this case, the trial judge held that the evidence of discreditable conduct was admissible for three purposes: to complete the narrative of the complainant’s description of her relationship with the appellant; to demonstrate the possible motive or animus of the appellant in committing the offences alleged; and to bolster the credibility of the complainant by providing an explanation for her failure to leave the relationship and report the allegations of abuse earlier than she did. I will consider each of these purposes separately. [20] In cases involving allegations of physical and sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse occurred. [21] In R. v. Litchfield (1993), 86 C.C.C. (3d) 97, the Supreme Court of Canada held that the evidence of sexual abuse of different complainants by the accused should have been admitted with respect to the counts relating to each of the other complainants. At p. 116 Iacobucci J. reasoned as follows: While this evidence could be characterized as evidence of similar acts or events, the evidence was not tendered solely to show that the respondent was a person of bad character or of a disposition likely to commit the alleged offences. Rather, the evidence provided information highly relevant to understanding the context in which the alleged offences occurred and shed light on the nature of the respondent’s relationship with his patients, particularly the standard of medical treatment he provided. See also R. v. S.B., [1996] O.J. No. 1187 (Gen. Div.); R. v. Craigg, [1986] O.J. No. 2123 (C.A.); and R. v. Dovak, [1989] O.J. No. 2499 (C.A.), leave to appeal to the Supreme Court of Canada refused [1990] 1 S.C.R. vii. [22] In this case it was important to put the complainant’s evidence supporting the charges in the context of the overall relationship. The complainant’s evidence was that the allegations underlying the charges were consistent with the attitude and behaviour that the appellant exhibited towards her throughout the one year period that they lived together. The challenged evidence would enable the jury to more fairly evaluate the complainant’s evidence regarding the specific allegations. Excluding that evidence would have left the jury with an incomplete and possibly misleading impression of the relationship. In my view, the disputed evidence was relevant for the purpose of setting forth the contextual narrative in the course of which the alleged events occurred. [23] The trial judge also held that the discreditable conduct evidence was admissible for the purpose of demonstrating the motive or animus of the appellant in committing the offences alleged. It is well established that evidence of motive is admissible to prove the doing of an act as well as the intent with which the act is done. R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.) at p. 167. [24] On several occasions courts have held that evidence of discreditable conduct, in particular evidence of abusive behaviour towards a complainant, is admissible for this purpose. R. v. Summerbell, [1996] O.J. 795 (C.A.); R. v. MacDonald (1974), 20 C.C.C. (2d) 144 (Ont. C.A.); R. v. Pheasant, [1995] O.J. No. 1215 (Gen. Div.) and R. v. S.B., supra. [25] In this case, the evidence, which in general terms described a pattern of abusive behaviour towards the complainant, if accepted, was capable of assisting the jury in understanding why the appellant did what was alleged in the indictment. This evidence demonstrated an animus on the appellant’s part towards the complainant that was consistent with the offences with which he was charged. The trial judge was correct in holding that the impugned evidence was relevant for this purpose. [26] Finally, the trial judge held that the discreditable conduct evidence could be relevant to the explanation by the complainant for her failure to leave the relationship and to report the abuse earlier. The complainant was vigorously challenged in cross- examination about the delay in reporting some of the allegations and her delay in leaving the marriage. The complainant’s evidence about the pattern of ongoing abuse and her fear of the appellant were important parts of her explanation for her conduct in this regard. The evidence of discreditable conduct was also relevant for this purpose. [27] In my view the trial judge was correct in holding that the evidence of discreditable conduct was relevant for the purposes set out above. The evidence was also clearly material, in that it was directed at the central issue in the case, the credibility of the complainant. Probative Value/Prejudicial Effect [28] The fourth step in the test set out in B. (L.) is to determine whether the probative value of the evidence in question outweighs its prejudicial effect. [29] In assessing the probative value, Charron J.A. in B. (L.) indicated that consideration should be given to the strength of the evidence, the extent to which it supports the inferences sought to be made and the extent to which the matters it tends to prove are in issue. The trial judge concluded that the discreditable conduct evidence in this case had significant probative value. [30] The complainant was the only witness who gave evidence of discreditable conduct. The strength of that evidence obviously depended on the jury’s assessment of her credibility. However the evidence, if accepted, was strongly supportive of the Crown’s case. It helped to show the animus of the appellant without which the jury may have wondered why, in a seemingly otherwise normal relationship, the appellant would behave as the complainant described. The evidence enabled the jury to understand the relationship and, importantly, strongly supported the complainant’s explanation for not leaving or reporting sooner. It therefore related to the central issues in the case. I agree with the trial judge that the probative value of this evidence was high. [31] The trial judge carefully considered the prejudicial effect of the evidence. The primary concern with this type of evidence is that the jury may misuse it by inferring guilt based on the bad character or disposition of an accused. [32] There are a number of factors which reduce the potential prejudicial effect of the evidence in this case. First, the evidence was highly probative of material issues in the case. In B. (L.) at p. 505, Charron J.A. observed that high probative value will tend to make it less likely that the evidence will be used improperly. [33] Next, the evidence of discreditable conduct was entirely that of the complainant. This was not a case in which the complainant’s credibility was bolstered by a third party testifying about the discreditable conduct of the appellant. If the jurors did not accept the complainant’s evidence about the charges, they were unlikely to have been greatly swayed by the additional evidence of discreditable conduct. See Gregg, “Other Acts of Sexual Misbehaviour and Perversion as Evidence in Prosecutions for Sexual Offences” (1965), 6 Ariz. L.R. 212 at p. 220. [34] Finally, in the charge to the jury, the trial judge gave a very clear limiting instruction on the purpose for which the jury could use the evidence, and importantly, the trial judge instructed the jury that they could not use this evidence to conclude that the appellant was the type of person who would be disposed to commit the offences with which he was charged. [35] In my view, the trial judge correctly concluded that the probative value of this evidence outweighed its prejudicial effect and properly held the evidence to be admissible. I therefore see no merit in this ground of appeal. 2. Expert Evidence [36] At trial, the Crown sought to call Deborah Sinclair to give expert evidence about what she referred to in a written report as the “battered women’s syndrome.” In the course of her evidence on a voir dire, Ms. Sinclair described this “syndrome” as that condition experienced by many women who report living in abusive intimate relationships including the effect of the abuse upon them and their behaviourial patterns in responding to that abuse. [37] Ms. Sinclair has a Bachelor’s Degree in psychology and sociology and a Master’s Degree in social work (with both a research and clinical component). For approximately 19 years she had worked, studied, taught and written in the area of violence and abuse in intimate relationships. She estimated that she had been involved in counselling approximately 600 families in which domestic violence had been reported. Her evidence had been accepted as that of an expert in the area of domestic abuse by courts in Ontario on approximately 36 different occasions. [38] After the voir dire, the trial judge ruled that most of the proposed evidence of Ms. Sinclair was inadmissible. Specifically, the trial judge excluded Ms. Sinclair’s evidence that described the general behavioural pattern or profile of abused persons in intimate relationships and also her opinion that the complainant came within this profile and was therefore suffering from having been in an ongoing abusive marital relationship. [39] However, the trial judge admitted Ms. Sinclair’s evidence with respect to the following matters: 1. a statement of the forms of abuse listed in her report; 2. opinion evidence as to the observed tendency of persons who report living in abusive intimate relationships to remain in or leave a relationship following an incident of abuse; 3. opinion evidence as to the observed tendency of persons who report living in an abusive intimate relationship to disclose or not disclose the fact or extent of alleged abuse or to minimize or to fabricate in relation to such matters, while continuing in a relationship; and 4. the extent to which her evidence concerning the foregoing is based upon her own experience, surveys, studies and general literature in the relevant areas. [40] The trial judge held that this evidence was admissible for the limited purpose of assisting the jury in evaluating the complainant’s explanation as to why, following some of the alleged incidents of abuse, she did not immediately leave the relationship and accurately report the alleged abuse. [41] Ms. Sinclair’s evidence before the jury was extremely brief; after the description of her qualifications, the examination-in- chief covered less than four pages of transcript and the cross- examination one page. In answer to the specific questions permitted by the ruling of the trial judge, Ms. Sinclair expressed the opinions that it was quite typical for persons who are battered or abused in a relationship to remain in the relationship for a period of time; that it was quite unusual for persons who are being abused in intimate relationships to report it to outsiders before they are ready to leave the relationship; and that it was not unusual for those persons to minimize or fabricate what has happened to them if they are reporting an injury to a health care person or someone else. [42] In her charge to the jury, the trial judge gave a careful instruction on the limited use that could be made of this evidence. She said the following: The purpose of such evidence is to assist you in determining whether an inference adverse to the credibility of the complainant should be drawn based on the evidence of the manner and timing and consistency of her disclosure. It may or may not assist you in that respect. Your duty is to consider the evidence of Ms. Sinclair and weigh it in the balance. You must not be overwhelmed or unduly swayed by the credentials of a particular witness just because he or she is permitted to give expert evidence. While her evidence concerning observed behaviours in persons who report abuse in intimate relationships may or may not assist you in assessing the credibility of the complainant in the manner I have described, I emphasize you must not use her evidence and it is not relevant for any other purpose. You may not, for example, use her evidence to increase or bolster the credibility of the complainant. Aside from considering her evidence in relation to the credibility of the complainant in the manner which I have described, you may not use her evidence for the purpose of assessing the likelihood that the events described by [the complainant] occurred. [43] In R. v. Mohan (1994), 29 C.R. (4th) 243 (S.C.C.), Sopinka J. set out the four criteria for the admission of expert evidence at p. 252: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; (d) a properly qualified expert. [44] The appellant accepts that the expert evidence of Ms. Sinclair was relevant and that there was no exclusionary rule that would have prevented her from testifying. The appellant contends, however, that the trial judge erred in admitting the evidence because there was not a sufficient evidentiary foundation to establish that the evidence was either reliable or necessary. [45] The reliability of expert evidence is not one of the four criteria set out in Mohan, however, it clearly is an essential requirement for the admission of expert evidence. In some cases, reliability has been considered as a element of the relevancy criteria (see for example Mohan) and in others as part of the need to have a qualified expert (R. v. McIntosh (1997), 117 C.C.C. (3d) 385 (Ont. C.A.)). Reliability [46] The appellant makes three arguments about the reliability of the expert evidence admitted by the trial judge. The first arises from what the appellant submits is an inconsistency in the reasoning of the trial judge in excluding some parts of Ms. Sinclair’s evidence and admitting others. [47] The evidence that was excluded described the profile or general behavioural patterns of persons who had been abused, and included an opinion that the complainant came within this profile and was therefore suffering from the impact of having been in an ongoing abusive marital relationship. [48] In rejecting this evidence the trial judge noted that Ms. Sinclair’s opinion was based almost entirely on her own experience. The trial judge held that the absence of evidence of an objective test of the reliability of such an opinion and of an objective means of evaluating the reliability of the opinion disqualified the evidence. The trial judge’s reasoning in this respect turned on Ms. Sinclair’s evidence that there was no existing profile or comprehensive statement of the impacts on or behaviour patterns of an abused person that would support a conclusion that one person had been abused and another had not. [49] In reaching this conclusion, the trial judge was applying, correctly in my view, the requirement for the admissibility of expert evidence which was subsequently articulated by Finlayson J.A. in R. v. McIntosh, supra, at p. 392, as follows: 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. See also R. v. B.M., [1998] O.J. No. 4359 (C.A.) per Rosenberg J.A. [50] The evidence that the trial judge admitted was considerably narrower in its scope and its purpose than the excluded evidence. The admitted evidence was limited to the observed tendency of persons who have been abused to remain in the relationship for some time and to not immediately disclose the abuse. It was not admitted to establish that the complainant had been abused, as she alleged, but rather to put in context her explanation for not having immediately left the relationship and disclosed the abuse. The effect of the evidence was that the complainant’s explanation was not as unusual as it might otherwise seem. [51] The difference between the excluded evidence and that admitted by the trial judge was described well in the respondent’s factum, “... there is a difference between saying ‘people who behave this way have been abused’ (a diagnosis) and saying ‘people who have been abused may behave this way’ (an explanation of behaviour based on clusters of observed tendencies).” [52] Ms. Sinclair’s opinion, with respect to this evidence, was based on her own clinical experience. However, she testified that her opinion was consistent with the findings of a number of studies including a Statistics Canada survey of 12,000 women carried out in 1993, the Report of the Canadian Panel on Violence which was based on hundreds of interviews, separate studies by Dr. Murray Strauss and Dr. Richard Gells in the United States and Dr. Richard Jaffe in Canada. [53] Although it would have been preferable if these studies had been produced and evidence had been led with respect to the methodology employed and the specific conclusions reached, I am satisfied that there was a sufficient basis to find that the subject matter of the admitted evidence met the test for reliability discussed in McIntosh. That, it seems to me, was the fundamental difference between the evidence that was admitted and the excluded evidence. I find no inconsistency in the trial judge’s reasoning in this respect. [54] Next, the appellant argues that the trial judge erred in admitting the evidence because the studies referred to by Ms. Sinclair had not been produced. Although, as I said above, it would have been preferable if those studies had been made available, that is a matter that went to the weight not the admissibility of Ms. Sinclair’s evidence. At trial, it was open to the defence to challenge Ms. Sinclair’s general statements about the empirical or scientific support for her opinions. It did not do so. I do not think the trial judge erred in this respect. [55] Thirdly, although the appellant accepts that the expert evidence was relevant, he argues that the evidence should have been excluded because its reliability was questionable, its probative value was minimal, and its probative value was outweighed by its prejudicial effect. The first difficulty with this argument is that at trial the defence did not seriously challenge the reliability of the admitted evidence; there is no basis in the evidence to support the submission that its reliability was questionable. [56] In any event, the concern that the jury would use this evidence for a purpose unfairly prejudicial to the appellant was minimal. The evidence was straightforward, easily understood and lasted a matter of minutes in the course of a very lengthy trial. This was not a case in which there was a danger that the expert evidence would overwhelm the other evidence and unfairly influence the jury. Further, as I set out above, the trial judge gave a clear instruction on the limited purpose for which the evidence was admitted. I see no merit in this argument that the probative value of this evidence was outweighed by its prejudicial effect. [57] In my view, the trial judge did not err in admitting this evidence because of concerns about its reliability. Necessity [58] Next, the appellant argues that Ms. Sinclair’s evidence failed to meet the necessity criterion set out in Mohan because the jury did not need this evidence in order to appreciate the complainant’s explanation for failing to leave the relationship and disclose the abuse. In this respect, the appellant argues that Ms. Sinclair’s evidence did not relate to matters that were outside the normal experience of the jury. [59] In Mohan, supra, Sopinka J. described the requirement for necessity at p. 254, in the following manner: 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 [[1982] 2 S.C.R. 24]. 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 (Village) v. Smith, [1931] S.C.R. 672, at p. 684, 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”. [60] In R. v. Lavallee (1990), 55 C.C.C. (3d) 97, the Supreme Court of Canada held that the expert evidence of a psychologist describing “the battered wife syndrome” was admissible to assist the jury in evaluating Ms. Lavallee’s perception of imminent danger in the context of her plea of self-defence. In the reasons of the majority, Wilson J. explained the need for the evidence as follows at p. 112: Expert evidence on the psychological effect of battering on wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called “battered wife syndrome”. We need help to understand it and help is available from trained professionals. At p. 111, she stated: 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. See also, R. v. C.(G.) (1996), 110 C.C.C. (3d) 233 (Nfld. C.A.). [61] The appellant argues that Lavallee is distinguishable because the context was different. In Lavallee, the Supreme Court reasoned that Ms. Lavallee’s perception of imminent danger was critical to the issue of self-defence and could not be evaluated without reference to the history of battering and the expert opinion as to the psychological impacts of that battering. That, it is argued, is a more difficult matter to understand than the complainant’s explanation in this case for not immediately leaving the relationship and disclosing the abuse. The appellant submits that the different elements of the complainant’s explanation, embarrassment, fear and hope are basic human emotions within the normal experience of the jury. [62] Although it is correct that the purpose of the evidence in Lavallee, to support a plea of self-defence, was different from the purpose for which the evidence of Ms. Sinclair was admitted in this case, the observations of the court in Lavallee about the necessity of expert evidence to assist the jury in answering questions such as why an abused woman would remain in a relationship are applicable and, in my view, lend support to the respondent’s argument that these matters are beyond the normal experience of jurors. [63] The appellant submits that, rather than relying on Lavallee, this case should be guided by this court’s decision in R. v. D.D. (1998), 113 O.A.C. 179. In D.D., it was held that expert evidence explaining the delayed disclosure by a child sexual abuse victim was not necessary to assist a jury and should not have been admitted. At pp. 185-6, Finlayson J.A. said the following: This brings me to the fourth, and perhaps the most compelling, reason for rejecting Dr. Marshall’s evidence: necessity. Once the expert concedes that delays in making disclosure about unpleasant matters, including the fact of the commission of a crime, are not restricted to children and can apply with equal force to adults, the question naturally arises: what does his testimony supply that is outside the normal experience? This is not a case like R. v. Norman (D.L.) (1993), 68 O.A.C. 22; 87 C.C.C. (3d) 153 (C.A.), which dealt with a syndrome unique to the complainant in that case known as child abuse accommodation syndrome. This testimony could apply to any complainant and not just in a sexual assault case. It is not necessary to assist the trier of fact in deciding any material fact. In permitting Dr. Marshall to testify, the trial judge did a disservice to the jury. He underestimated its capacity to understand this behaviour and to make a judgment based on the jurors’ collective knowledge of the behaviour of children and adults. Finlayson J.A. went on to hold that the complainant’s explanation for not disclosing the sexual assaults, a concern that her mother might ground her, had nothing to do with a psychological disorder and came within the normal experience of the jurors. [64] In this case, the question is whether the expert evidence was necessary to enable the jury to properly appreciate the complainant’s explanation for not immediately leaving the relationship and disclosing the abuse. This involved more than simply understanding the meaning of the words used by the complainant in giving her explanation. It also involved appreciating the context in which the explanation was given; by that I mean appreciating that persons who are abused in intimate relationships may respond differently because of that relationship than they would in other circumstances. [65] There is no exact way to draw the line between what is within the normal experience of a judge or a jury and what is not. The normal experiences of different triers of fact may differ. Over time the subject matters that come within the normal experiences of judges and juries may change. The normal experiences of those in one community may differ from those in other communities. In the end, the court in each case will be required to exercise its best judgment in deciding whether a particular subject matter is or is not within the normal experience of the trier of fact. [66] It seems to me that in cases being tried with a jury, the trial judge is in a better position than this court to determine whether expert evidence is necessary to assist the jury in evaluating evidence or drawing inferences from it. The trial judge has the advantage of hearing the evidence in issue, observing the jury and being able to appreciate the dynamics of the particular trial. In addition, the trial judge may also be in a better position to determine what may come within the normal experience of the average juror in the community in which the case is being tried. For those reasons, in my view, this court should show some deference to the decisions of trial judges in this area. [67] Although I am inclined to think that the expert evidence admitted in this case would come within the normal experience of many jurors, I am not prepared to interfere with the decision to admit the evidence on this basis. The trial judge was obviously alive to the requirements set out in Mohan. She carefully reviewed the proposed evidence, the purpose for which it was being tendered and reached a considered judgment that it was admissible. I am unable to conclude that she erred in doing so. In my view, this ground of appeal therefore fails. 3. Charge to the Jury – Sexual Assault/Consent [68] The trial judge left the jury with alternate theories of liability on the charge of sexual assault. First, she instructed the jury that they could find there was no consent because the complainant resisted. Alternatively, she directed that if the jury found that the complainant submitted or did not resist the appellant by reason of threats or the fear of the application of force to herself or to her brother, they could find the Crown had proven a lack of consent under s. 265(3) of the Criminal Code. [69] Section 265(3)(b) provides as follows: 265. (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of ... (b) threats or fear of the application of force to the complainant or to a person other than the complainant. [70] The appellant argues that this alternate theory of culpability should not have been left with the jury because it lacked an air of reality. [71] In support of this argument, the respondent relied on the evidence of the complainant that, when she was leaving the bedroom because the appellant had been engaging in unwanted sexual advances, the appellant said to her “if you leave now I’ll kick both you and brother out.” At that point, the complainant testified, she turned around, started crying and came back because she was afraid for both herself and her brother. Shortly afterwards the sexual intercourse took place without her consent. [72] The appellant contends that the words “if you leave now I’ll kick both you and your brother out” did not constitute a threat of the application of force within the meaning of s. 265(3)(b). [73] The trial judge instructed the jury that the threat referred to in s. 265(3)(b) is a threat to apply force to the complainant or another person; that they should examine the words objectively to determine whether those words would convey a threat to apply force to a reasonable person who found herself in the position of the complainant with the past history of abuse by the appellant; that it was necessary that the appellant have intended to threaten to apply force to the complainant or her brother; and that the reaction or belief of the complainant as to whether these words constituted a threat was not an element of their consideration as to whether or not they in fact constituted a threat. [74] In many situations, a threat “to kick someone out of a house” would not constitute a threat to apply force; it would be nothing more than a colloquial expression of an intent to cause that person to leave the house. However, given the complainant’s evidence and the history of ongoing physical abuse, it was open to the jury in this case to find that the appellant’s language did constitute a threat to apply physical force and the complainant submitted to the act of intercourse by reason of that threat. Counsel for the appellant (not Mr. Kapoor) did not object to this evidence being put to the jury as a basis on which they could find a threat of the application of force. I am not satisfied that the trial judge erred in leaving the alternate theory of culpability under s. 265(3)(b) with the jury. 4. Charge to the Jury – Re Self-Defence [75] At trial, the appellant argued that if the jury found that the appellant pushed the kitchen tongs into the complainant’s neck on August 2, 1994, they should find that he was acting in self-defence. The complainant testified that immediately before the assault by the appellant she had waved the tongs in the appellant’s face and said that she felt like shoving the tongs down his throat. The trial judge’s charge on the issue of self- defence covered eleven pages of the transcript. The appellant accepts that the charge was proper except for the following comment which came at the very end of the instruction on this issue: Finally, please remember again that lawful self-defence proceeds from necessity. The instinctive and intuitive need for self-preservation. It cannot be used as a cloak for aggression, retaliation or revenge. [Emphasis added.] [76] The trial judge repeated this instruction in response to a question from the jury. [77] The appellant argues that the problem with this instruction is that it leaves the impression that even if the appellant complied with the self-defence provisions of the Criminal Code, the appellant could not avail himself of self-defence if he acted out of “aggression, retaliation or revenge.” The appellant submits that a person acting in self-defence may also act aggressively, or in a retaliatory manner. Accepting this submission for purposes of this argument, I do not read the last sentence set out above as qualifying or limiting the instruction on self-defence that preceded it. [78] I note that counsel at trial did not object to this aspect of the charge on any of the three opportunities he had to do so: when invited to make a mid-charge comment immediately after the direction was given, at the conclusion of the charge, or when the instruction was repeated to the jury in answer to a question. The failure of defence counsel to comment on the charge “says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.” R. v. Jacquard (1997), 113 C.C.C. (3d) 1 (S.C.C.) at p. 19. [79] I am satisfied that given the thorough and accurate review by the trial judge of the law of self-defence there was no possibility that the jury would have been misled by the reference referred to above. This ground of appeal therefore fails. CONCLUSION [80] In summary, for all of the above reasons, I would dismiss the appeal. Released: March 3, 1999 _______________________________ 1 The ten counts comprised three charges of assault, two of assault with a weapon, two of threatening and one each of assault causing bodily harm, unlawful confinement and sexual assault.