R. v. Llorenz

R. v. Llorenz Collection Decisions of the Court of Appeal Date 2000-06-01 Docket numbers C32783 Judges Laskin, John Ivan; O’Connor, Dennis; Sharpe, Robert J. Subject Criminal Decision Content DATE: 20000601 DOCKET: C32783 COURT OF APPEAL FOR ONTARIO LASKIN, O'CONNOR and SHARPE JJ.A. BETWEEN: ) ) Robert Goddard HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Renee M. Pomerance ) for the respondent HUGO GAYETANO LLORENZ ) ) Appellant ) ) Heard: February 22, 2000 ) On appeal from the conviction by Madam Justice German, sitting with a jury, dated November 17, 1995 and the sentence imposed on December 8, 1995. O’CONNOR J.A.: [1] After a trial by a judge and jury, the appellant was convicted of gross indecency, intercourse with a female under fourteen, sexual interference, and sexual exploitation. The appellant was sentenced to a total of eight years imprisonment. He appeals the convictions and the sentence. [2] The complainant alleged that the appellant sexually abused her on hundreds of occasions over a six year period beginning when she was ten years old. The Crown called a psychiatrist who had treated the complainant for a period of two and a half years after the alleged abuse. The psychiatrist gave evidence about his diagnosis of the complainant’s condition as it related to the allegations of sexual abuse. The appellant testified and denied the allegations. [3] The appeal against conviction raises two issues: the admissibility of portions of the psychiatrist’s evidence and the adequacy of the trial judge’s charge on the use to be made of this evidence. I am satisfied that a good deal of the psychiatrist’s evidence came within the impermissible category of “oath-helping” and as such was not admissible for the purpose of establishing that the complainant was truthful in making the allegations of sexual abuse. Moreover, the trial judge failed to instruct the jury that this evidence could not be used for that impermissible purpose. Given that the credibility of the complainant was central to the Crown’s case, I am of the view that the appeal must be allowed and a new trial ordered. FACTS [4] It is not necessary to set out more than a brief summary of the facts. I will refer to the psychiatrist’s evidence in detail in the course of my analysis of the issues. [5] In 1985, when the complainant was ten years old, her mother introduced her to the appellant who claimed to be a psychic. He had told the mother that the complainant was born with a curse and that, if she was not cured, she would die by the age of 16. The appellant said he could cure the complainant by passing energy to her, but that it would be a lengthy process. The complainant and her mother, who were both members of a South American religious cult, testified that they believed the appellant. [6] The complainant began spending time with the appellant and met with him regularly in his apartment for the healing sessions. She said she often slept over at the appellant’s apartment. According to her testimony, the healing sessions gradually turned into sexual encounters. She protested at first, but went along after the appellant told her that he was offended because she was like a daughter to him. In time, sexual touching escalated to oral and vaginal intercourse. The complainant said there were between 500 and 650 acts of sexual intercourse over the six year period ending in 1991. [7] The defence challenged the complainant’s credibility on cross-examination, pointing out inconsistencies between her testimony at trial and what she had said on earlier occasions. The defence also focussed on the fact that the complainant had allegedly endured sexual abuse for six years without complaint and that her mother had not noticed that the abuse was occurring. [8] Although there was some independent evidence that tended to support some aspects of the events recounted by the complainant, the Crown’s case rested almost entirely on the credibility of the complainant. There was no independent evidence of the sexual abuse. [9] The complainant did not immediately complain about the abuse. In April 1993, approximately two years after the alleged sexual abuse ended, she was referred to Dr. Voysey, a psychiatrist. The purpose of the therapy was to address emotional and psychological difficulties she was experiencing. Over the course of the therapy sessions, the complainant progressively provided information about sexual abuse that she said she had suffered at the hands of the appellant. She recalled these incidents in part as a result of “flashbacks.” [10] The appellant testified and denied all the allegations of sexual abuse. He said that he is a psychic with a greater capacity than others to do certain things. He told the complainant’s mother that “the instinctive mind” of her second child, the complainant, would die at age 16 unless she was cured. As a result of this, he put energy into healing the complainant. He spent considerable time with her. He said that he regarded her as a daughter and that he taught her living skills like cooking and washing. [11] The defence called witnesses who lived in the appellant’s apartment for part of the relevant time period, or who were present in the apartment from time to time. They said that the complainant did not sleep over during the time they were present. [12] The defence also called Dr. Allan Long, a psychologist, who was qualified as an expert to give an opinion of the “blocking out” phenomenon, flashbacks, repressed memory, and related matters. When told that the complainant reconstructed her memory in bits and pieces, Dr. Long said that this was very unusual, especially in the case of repeated sexual assaults over an extended period of time. Dr. Long also testified that the idea of repressed memory is still very controversial. Finally, he responded to Dr. Voysey’s testimony, summarized below, by saying that the role of a therapist is to treat people, not to evaluate their credibility or investigate their recounting of past events. ANALYSIS (a) Admissibility of Dr. Voysey’s opinion [13] Dr. Voysey, a practising psychiatrist, was qualified as an expert to express opinions in the areas of adolescent psychology and childhood sexual abuse. He began to see the complainant in April 1993. At the time he gave evidence, he had been seeing the complainant approximately twice a week for two and a half years. Dr. Voysey’s opinions were based on his personal knowledge of the complainant and on his general knowledge of child sexual abuse as a specialist in the psychiatric treatment of adolescents. [14] Dr. Voysey testified that he made a number of diagnoses. He said the complainant suffered from severe depression, drug abuse, a borderline personality disorder, and a post-traumatic stress disorder. Dr. Voysey testified that when the complainant disclosed the allegations of sexual abuse to him he encouraged her to go to the police. However, he did not become involved in the police investigation. [15] A considerable portion of Dr. Voysey’s evidence-in-chief dealt with his diagnosis of the complainant’s condition as it related to her allegations of sexual abuse. Dr. Voysey did not specifically say that he believed the complainant was telling the truth in making the allegations. The unmistakable message communicated to the jury, however, was that he had discussed the complainant’s allegations of sexual abuse with her over an extended period of time and that he believed she was telling the truth. It is the substance of this message, the oath-helping nature of Dr. Voysey’s evidence, that is in issue on this appeal. [16] After Dr. Voysey gave his opinion that the complainant suffered from a post- traumatic stress disorder. He referred to a document entitled “Recommended Factors to be Taken into Account in the Assessment of Sexual Victim Trauma Severity.” This document, the doctor testified, had been prepared by him in relation to another case where he had been asked to assess the severity of sexual abuse. It was based on his experience, his reading, and on literature documenting 282 cases of sexual abuse. The doctor stated that the purpose of the document was to “speak to the severity of the post-traumatic stress disorder, given that the source of the trauma is sexual victim trauma.” [17] Although the document was not entered as an exhibit, the jurors were provided with copies to enable them to more readily follow Dr. Voysey’s evidence. They were asked to return the copies at the conclusion of the doctor’s evidence. [18] The document contained a list of 24 factors regarding, for the most part, the psychological or physical condition of the victim whose abuse is being assessed. In his evidence, the doctor reviewed each of the factors. First, he explained the nature of the particular factor. Then he gave his opinion about whether the factor was present in the complainant’s case. [19] By way of example, one factor was “interpersonal relationship problems”. This factor is consistent with sexual abuse, according to Dr. Voysey’s testimony, and he stated: “… in this case [of the complainant] I see this factor present quite significantly.” Another factor was suicidal behaviour. According to Dr. Voysey: “… about 50 percent of sexual abuse victims are suicidal. In this case, this was seen from day one.” Another was “the degree of sexual responsiveness experienced by the victim” which “seems to have a very strong association with severe sexual abuse … and I believe that was present in this case.” Finally, the factor of “terror” was present “in 92 percent of patients who were ranked in the severe category, and I say here I believe this was strongly present.” [20] In Dr. Voysey’s opinion, the complainant’s condition matched approximately 20 of the 24 factors he considered to be common in cases of sexual abuse. The very nature of this exercise, measuring the complainant’s condition against the 24 factors that Dr. Voysey considered helpful in assessing the severity of sexual abuse, and the rather dramatic result that the complainant demonstrated the large majority of them, was likely to send a strong message to the jury that Dr. Voysey believed the complainant’s allegations. The title of the document suggested that the 24 factors would be considered by Dr. Voysey in relation to persons whom he had already determined had suffered from sexual abuse. The review of the factors was aimed at determining the severity of that abuse. In this case, the review of the 24 factors was done in relation to the complainant’s specific allegations of sexual abuse against the appellant. The result of this review could only be interpreted as meaning that Dr. Voysey concluded that the complainant had been severely abused as she alleged. [21] Moreover, during the course of the review of the 24 factors, Dr. Voysey made a number of statements that tended to confirm the impression that he believed the complainant was telling the truth. For example, he said: “…in this situation [the complainant’s] there was abuse over a six or more year period”; …. “In this case [the complainant’s] I believe there was some violence used in that she was hit and that she feared being hit”; and … “Both [terror and violence] were present in this case and both alone would get her into the severe category.” [22] Immediately following his review of the 24 factors, Dr. Voysey said that he was not an investigator of the extrinsic facts of the case and that his assessment relied on “self- reports, conversation and my assessment of those self-reports, their internal consistency, their lack of validity over time.” [My emphasis.] [23] Later in Dr. Voysey’s testimony, the following exchange took place, which in my view solidified the message that Dr. Voysey believed that the complainant was telling the truth: Q. But thinking only of [the complainant] herself, in the two-and-a-half years I gather that you have discussed her allegations of sexual abuse? A. I have, yes. Q. During those two-and-a-half years, can you comment on the internal consistency of what she’s told you, and by that I mean have you ever had the experience of getting one story one day and a different story the next day? A. Not to any significant degree. And significant degree is for me to alter any of my diagnoses. So again I want to point out I was not determining fact, but by determining internal consistency I can, for example, see if the person is more lying and trying to get away with it, which I didn’t find, or is out of touch with reality, because reality will change differently than how their mind will change, and I did not find that in this circumstance either. So there is a high degree of internal consistency, high enough for me to be quite confident in the diagnoses. They seemed to have settled and are working. I’m also treating her for those diagnoses, and she seems to be responding. [My emphasis.] [24] In giving his evidence relating to the complainant’s allegations of sexual abuse, Dr. Voysey expressed a number of disclaimers. He said that it was not his job to determine the facts; rather, that was a matter for the fact finders and the police. Also, he said that he did not investigate the extrinsic facts to determine if there had been sexual abuse. Further, he acknowledged, as I pointed out above, that his opinions were based only on what the complainant told him, self-reports, and his assessments of the self-reports. Finally, in cross- examination, he said there is no such thing as a sexual abuse syndrome, and that “there is nothing I could find as a psychiatrist that would find evidence of sexual abuse.” He said that “the thrust” of his evidence was that there were indicators consistent with sexual abuse in the case of the complainant. [25] I am satisfied that, taken as a whole, Dr. Voysey’s evidence communicated to the jury the clear message that he believed the complainant’s allegations of sexual abuse. In my view, his statement that “there is a high degree of internal consistency, high enough for me to be quite confident in the diagnosis” clearly expressed his opinion that the complainant was telling the truth about the abuse she reported to him. The disclaimers did not seriously detract from this message. They did not refer to the doctor’s belief in the complainant’s truthfulness nor were they inconsistent with the evidence communicating that belief. [26] The first issue then is whether the evidence that communicated Dr. Voysey’s belief in the truthfulness of the complainant’s allegations should have been admitted. Somewhat surprisingly, there was no objection to any of this evidence and as a result the trial judge was not asked to focus on the oath- helping nature of the evidence. [27] The rule against oath-helping prohibits the admission of evidence adduced solely for the purpose of proving that a witness is truthful. The rule applies to evidence “that would tend to prove the truthfulness of the witness rather than the truth of the witness’s statements”: R. v. B.(F.F.) (1993), 79 C.C.C. (3d) 112 (S.C.C.), per Iacobucci J., at 135. [28] The line to be drawn when evidence is considered to be oath- helping is not always clear. There is a distinction to be made between (1) evidence about credibility (i.e. in my opinion the witness is truthful), which is inadmissible and (2) evidence about a feature of the witness’s behaviour or testimony, which may be admissible even though it will likely have some bearing on the trier of fact’s ultimate determination of the question of credibility: R. v. K.(A.) (1999), 45 O.R. (3d) 641 (C.A.), per Charron J., at 678. [29] In R. v. Marquard (1993), 85 C.C.C. (3d) 193 at 228 (S.C.C.), McLachlin J. described the rule and the rationale for it as follows, at 228: It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion…. A judge or jury who simply accepts an expert’s opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter…. Moreover, the expert’s opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert’s opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. [30] Evidence is not necessarily inadmissible simply because it falls into the oath-helping category. It may still be admitted if, in addition to being oath-helping, it has some other legitimate purpose. In R. v. Burns, [1994] 1 S.C.R. 656, the court considered whether the opinion of a psychiatrist called by the Crown that the complainant had not been untruthful when describing the allegations of sexual abuse was admissible. In this regard, McLachlin J., at 668-9, said the following: Dr. Maddess’ evidence does not violate the rule because it was directed to legitimate purposes having nothing to do with whether the complainant was credible or not. The fact that evidence may be inadmissible for one purpose (i.e. showing the truthfulness of a witness) does not prevent it being received for another, legitimate purpose. The evidence of Dr. Maddess in the impugned passage was admissible for the purpose of supporting the opinions Dr. Maddess expressed on other matters, such as his diagnosis of the complainant’s condition and his explanation of her behaviour. His conclusions were based in large part on what she had told him. Those conclusions would be weakened if not invalidated if he did not believe what she had told him. So it was relevant to determine whether he believed her or not…. ….In short, there is nothing in the record to suggest that the trial judge used the statement to bolster the complainant’s credibility; indeed the inference is to the contrary. [31] I do not take Burns to hold that oath-helping evidence should necessarily be admitted simply because it is led for another proper purpose. When considering the admissibility of such evidence, a court must still weigh its probative value in relation to its legitimate purpose, against its prejudicial effect. In this analysis, the court should be cautious about the potential for distorting the fact finding process, particularly where the oath-helping evidence is that of an expert. Issues of credibility are for the trier of fact to decide, not experts. [32] In cases which turn on the question of which one of two witnesses is telling the truth, there is the danger that a jury may attach significant weight to the oath-helping aspect of the evidence of an expert, even if instructed to do otherwise. In Khan v. College of Physicians & Surgeons of Ontario (1992), 76 C.C.C. (3d) 10 (Ont. C.A.), Doherty J.A., at 33, described the concern about undue reliance on experts as follows: Faced with the often intractable problem of trying to decide who is telling the truth in cases of alleged child abuse, the trier of fact may seek refuge in the apparent security and objectivity of the expert’s opinion evidence …. Thus, if evidence with an oath-helping component is admitted for another purpose, there should be a genuine effort to limit the oath-helping aspects of the evidence as much as possible in order to minimize the potential for misuse of the evidence. [33] I turn now to the question of the admissibility of Dr. Voysey’s evidence in this case. As I said above, there was no objection to any of his evidence. Some portions of Dr. Voysey’s evidence were properly admitted as part of the narrative. For one, the complaints first came to light during discussions between Dr. Voysey and the complainant. These disclosures led the complainant to contact the police, which in turn led to the charges being laid two years after the alleged abuse had stopped. It was open to the Crown to call evidence to provide the context in which the allegations were first made. However, this admissible evidence, which formed part of the narrative, was a relatively small part of Dr. Voysey’s testimony. It did not require the extensive testimony about the 24 factors, nor Dr. Voysey’s opinion as to the internal consistency of the complainant’s allegations. [34] In addition, it was open to the Crown to lead evidence from Dr. Voysey to explain that the failure of the complainant to disclose the abuse at an earlier point in time was not necessarily inconsistent with the abuse having occurred. When the credibility of a complainant in a sexual abuse case is challenged on the basis of delayed disclosure, as in this case, evidence may be admitted to explain the delay: R. v. K. (A.), supra; R. v. F. (D.S.) (1999), 43 O.R. (3d) 609 (C.A.). However, very little, if any, of Dr. Voysey’s evidence was led for this purpose. On the contrary, the bulk of the evidence relating to the 24 factors and the applicability of those factors to the complainant had nothing to do with explaining the delayed disclosure. [35] Finally, it may be argued that Dr. Voysey’s opinion that the complainant’s condition was consistent with sexual abuse was admissible as evidence that tended to support the complainant’s testimony that she had been abused. This court has held that, in some cases, expert evidence may be admitted to show that certain behaviours, symptoms, or psychological conditions could be consistent with sexual abuse: see, for example, R. v. J. (F.E.) (1989), 53 C.C.C. (3d) 64 at 70 (Ont. C.A.); R. v. R.(S.) (1992), 73 C.C.C. (3d) 225 at 230-1 (Ont. C.A.). [36] When the admissibility of evidence of this nature is being considered, however, it is necessary to take great care to ensure that the prejudicial effect does not outweigh its probative value. Admission of this kind of evidence raises the serious possibility that a trier of fact, particularly a jury, will have difficulty in making the important distinction between using the evidence for the permissible purpose of supporting the truth of the complainant’s statements, on the one hand, and using it for the impermissible purpose of showing that the complainant is a truthful witness, on the other. When one considers the additional concern that expert psychiatric evidence of this nature may not demonstrate the same degree of scientific reliability as the evidence of experts in some other areas, it is essential that the courts approach the weighing exercise with caution. That said, if evidence is to be admitted for the purpose of showing that the complainant’s condition was consistent with sexual abuse, then the evidence should be led in a manner that reduces, to the extent possible, the potential for its misuse. [37] In this case I do not think that it was necessary for the Crown to lead the evidence of the 24-point list, with the accompanying opinions, in order for Dr. Voysey to express his opinion that the complainant suffered from symptoms that were consistent with sexual abuse. In any event, I am satisfied that the strength of the oath-helping message that emerged from this evidence was such that the unfair prejudicial effect far outweighed its probative value. Dr. Voysey’s review of the 24- point list, combined with his opinion that the complainant’s condition scored very high on the list, was central to the examination-in-chief. The importance of this evidence was emphasized by the provision of copies of the list to each of the jurors. [38] There was a serious likelihood that the jury would have attached substantial weight to Dr. Voysey’s obvious belief that the complainant was telling the truth. He had seen her on a regular basis over a two and one half year period. He was an expert in matters of childhood sexual abuse, and he clearly had a more thorough opportunity than the jury to assess the complainant’s credibility. Diagnosing and treating sexual abuse victims was part of his expertise. In these circumstances, it would be difficult for the jurors, even if properly instructed, to avoid using Dr. Voysey’s opinion for the impermissible oath- helping purpose. [39] In addition to the problem arising from the oath-helping nature of the evidence relating to the 24 factors, there is an additional concern about the reliability of the evidence, or more accurately perhaps, the lack of reliability. Because there was no objection, the court’s attention was not directed to this issue. Nevertheless, expert opinion evidence should only be admitted when it is established that the opinion is based on a body of knowledge that is shown to be scientifically recognized and reliable: R. v. McIntosh (1997), 35 O.R. (3d) 97 (C.A.), R. v. Terceira (1998), 38 O.R. (3d) 175 (C.A.). The record in this case falls short of satisfying this requirement. Without in any way diminishing Dr. Voysey’s expertise, there was no evidence that the 24-factor approach had been used or accepted by others in the psychiatric community. Nor was there any evidence that the results of the application of the 24-factor approach had been subjected to any testing in order to determine the accuracy and usefulness of any conclusions that may be reached by using that approach. I recognize that the lack of this type of qualifying evidence may have resulted from the failure of the defence to object, nonetheless, the nature of the evidence being introduced was such that it was important that the scientific reliability of the evidence be established. [40] On this appeal, the Crown did not argue that the evidence relating to the 24 factors was admissible. Rather, the Crown submitted that Dr. Voysey’s disclaimers were sufficient to neutralize any prejudice arising from the admission of this evidence. [41] I do not accept this submission for two reasons. First, the disclaimers were not directed at the mischief to which the rule against oath-helping is directed. There was nothing in the disclaimers to water down the message that Dr. Voysey believed the complainant was truthful in making the allegations against the appellant. Second, there was a serious danger that the sheer bulk and the nature of the inadmissible evidence would swamp the disclaimers in the consideration of the jury. [42] The decision of the British Columbia Court of Appeal in R. v. Jmieff (1994), 94 C.C.C. (3d) 157, is instructive. The expert evidence in Jmieff had similarities to that of Dr. Voysey. There, the doctor testified that he could apply an approach he called “statement validity analysis”, whereby 19 separate features of a statement are analysed to differentiate between actual experiences and invented ones. The doctor said that the complainant had been quite consistent in describing the events and expressed the view that the complainant’s statement had the features of a credible memory. Like Dr. Voysey, the doctor in Jmieff made a disclaimer. He said he was not implying that the complainant’s evidence was true. However, McEachern C.J.B.C., for the court, concluded that the doctor’s evidence (taken as a whole) belied that statement. He reasoned that the doctor had given an opinion going directly to credibility and, for that reason, the evidence was inadmissible. [43] In the same way, I conclude that the disclaimers in this case were insufficient to redress the unfair prejudice to the appellant arising from the inadmissible evidence. Accordingly, I am of the view that that part of Dr. Voysey’s evidence that communicated the oath-helping message ought not to have been admitted. (b) Charge to the jury [44] Accepting for the purpose of discussion that the evidence of Dr. Voysey was properly admitted, it was essential that the trial judge instruct the jury on both the permissible and the impermissible use of that evidence. With respect, the trial judge’s charge did neither. The jury should have been told that Dr. Voysey’s evidence could be used as part of the narrative, as an explanation for the delayed disclosure, and possibly to show that the complainant’s condition was consistent with a person who had suffered abuse. However, it was essential that the jury be specifically instructed that that evidence was not to be used for the purpose of bolstering the complainant’s credibility; that is, to show that it was more likely she was telling the truth because Dr. Voysey may have believed her allegations. [45] A trial judge is obliged to instruct a jury on the limited use that may be made of evidence that is admitted for one purpose but which is unfairly prejudicial to an accused in relation to another. See, for example, R. v. B.(F.F.), supra, at 138. [46] In Burns, supra, the Court considered it necessary for the trial judge to instruct himself not to use the impugned evidence for the impermissible purpose of bolstering the complainant’s credibility. Although the trial judge did not expressly say that he was not using the evidence for an oath-helping purpose, the Court was satisfied that he knew the law, that he had been alerted to the impermissible use of the evidence, and that he had not used it for that purpose. [47] In this case, in addressing the use of the expert evidence, the trial judge gave a general jury instruction that expert opinions are only of value if the jury finds that the underlying facts are established, and that it is for the jury to decide what those facts are. [48] When the trial judge turned to the specific expert evidence of Dr. Voysey she began by saying: Now in assessing [the complainant’s] credibility there is the evidence of Dr. Voysey, her treating psychiatrist, and the evidence of Dr. Long, the psychologist. [49] The trial judge referred to Dr. Voysey’s disclaimer that it was “not his job to determine the truth or otherwise of what [the complainant] told him” and that “he didn’t attempt to do so.” She then reviewed, in some detail, a number of the factors on the list of recommended factors “to be taken into account in the assessment of sexual abuse victims,” and commented that Dr. Voysey felt the complainant showed a number of these factors. [50] The trial judge went on to summarize Dr. Voysey’s evidence that he had discussed the complainant’s allegation of sexual abuse with her and that he found “a high degree of internal consistency, high enough for him to be considered (sic) in his diagnosis in that he does not find she was out of touch with reality.” The trial judge then repeated Dr. Voysey’s disclaimer on cross-examination that a psychiatrist cannot tell if a person has been sexually abused. [51] Finally, after dealing with the cross-examination of Dr. Voysey on the “flashback issue”, the trial judge concluded her review of Dr. Voysey’s evidence by saying that Dr. Voysey was “treating” the complainant “as a person who had been sexually abused.” She instructed that Dr. Voysey, in coming to his diagnosis, relied on what the complainant told him, and that “if what she told him was not correct, then his diagnosis would not be correct.” [52] In my view, there are a number of difficulties with this review. The only reference to the use to be made of Dr. Voysey’s evidence was the trial judge’s opening remark that it could be used in assessing the credibility of the complainant. This comment exacerbates the problem in that it suggests that the jury could use the doctor’s opinion that the complainant was truthful to bolster her credibility. [53] Moreover, the reference to the 24-point list, and to the doctor’s opinion that the complainant’s allegations of sexual abuse were internally consistent, invites the jury to use the evidence in an oath-helping manner. [54] The trial judge’s references to Dr. Voysey’s disclaimers, without more, fell well short of what was necessary to caution the jury not to use the Dr. Voysey’s opinion in an impermissible manner in relation to the complainant’s credibility. It was essential that the trial judge clearly and unequivocally instruct the jury on this impermissible use. As I pointed out above, the disclaimers do not address the crux of the problem. They do not disclaim Dr. Voysey’s opinion that he believed the complainant. [55] The complainant’s credibility was the central issue in this trial. In my view, there is a serious likelihood that the jury, confronted with the conflicting evidence of the complainant and the appellant, looked to Dr. Voysey’s opinion regarding the truthfulness of the complainant to resolve the issue. I am satisfied that, once the evidence that contained the oath-helping message was admitted, the trial judge’s failure to charge the jury in the manner I have set out constitutes a misdirection that necessitates a new trial. DISPOSITION [56] For the above reasons, I would allow the appeal, set aside the convictions and order a new trial. Released: JUN 01 2000 “JL” “Dennis O’Connor J.A.” “I agree John Laskin J.A.” SHARPE J.A. (Dissenting): [57] I respectfully disagree with the conclusion reached by my colleagues. I would dismiss the appeal for the following reasons. FACTS [58] After a four-week trial, the appellant was convicted of gross indecency, intercourse with a female under the age of fourteen, sexual interference, and sexual exploitation. The jury was directed to acquit on three counts of invitation to sexual touching and a guilty verdict on one count of sexual assault was stayed by the trial judge pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant was sentenced to a total of 8 years imprisonment. He appeals both the convictions and sentence imposed. [59] The complainant alleged that the appellant had sexually assault her on hundreds of occasions from the time she was ten years old until she reached the age of sixteen. The theory of the Crown was that the appellant had told the complainant’s mother that the child was born with a curse and that she would die by the age of sixteen unless he used his psychic powers to cure her. The appellant and the complainant’s mother were both adherents to a South American religion that includes a belief in curses. The evidence led at trial by the Crown was to the effect that the appellant had abused the trust and influence he gained with respect to the complainant to gratify his sexual desires. The complainant did not come forth with her allegations for some time. The appellant testified and denied that he had sexually interfered with the complainant. [60] The crown called as a witness Dr. Mark Voysey, a psychiatrist who had treated the complainant for two and a half years. Dr. Voysey was qualified to testify as an expert in adolescent psychology and childhood sexual abuse. During his testimony, a document entitled “Recommended Factors to be Taken in to Account in the Assessment of Sexual Victim Trauma Severity” was shown to the jury as a demonstrative aid. This three-page document was based upon studies of other victims of sexual assault. It listed twenty-four factors that could be used as a check-list to measure the severity of trauma in sexual assault victims. Among the items listed were “interpersonal relationship problems”, “sexual dysfunction”, “substance abuse” and “self abusive and self destructive behaviours”. Although the document was not entered as an exhibit, it was used by Dr. Voysey to explain the symptoms of trauma demonstrated by the complainant. At the conclusion of this portion of his evidence, Dr. Voysey indicated that the complainant exhibited twenty of the twenty- four factors listed. No objection was made to the use of the check-list, and although it was not made an exhibit, the appellants’ trial counsel asked that it be left with the jury for the purposes of his cross-examination. ANALYSIS [61] It is submitted by the appellant that the purpose of the check-list was never adequately explained to the jury and that it was irrelevant to the issues to be addressed by the jury. The appellant contends that there is a significant risk that the jury would have interpreted the check list as a diagnostic tool to determine whether sexual assault had occurred. It is submitted that the tenor of Dr. Voysey’s evidence, read in conjunction with the check-list, would lead the jury to believe that as the complainant exhibited twenty of the twenty-four factors, it was more likely that her allegations were true. Reliance is placed on R. v. K. (A) (1999), 45 O.R. (3d) 641 (C.A.) at 681 where Charron J.A. said of similar evidence: The evidence is not and cannot be presented to show that the complainant is more likely to have been abused because she has not disclosed the abuse in a timely fashion or because she has exhibited some other forms of behaviour. Such a proposition would be untenable. It would turn features such as delayed disclosure, faulty memory, inconsistent versions and the like into hallmarks of truth. [62] In order to assess the impact of the use of the check-list, it is necessary to place Dr. Voysey’s evidence in context. The complainant did not immediately disclose her allegations of sexual abuse. Her recollections of those disclosures were based on “flashbacks”. The complainant had experienced significant difficulties in her life and she exhibited aberrant behaviour following the alleged abuse, including significant drug abuse. The appellant used these matters to attack the complainant’s credibility. [63] Dr. Voysey was the complainant’s treating psychiatrist. It was during the time she was under his treatment that she experienced “flashbacks” and made her allegations against the appellant. Dr. Voysey’s evidence included an explanation of his diagnosis and treatment of the complainant and the phenomenon of flashbacks, as well as his assessment of the symptoms of trauma exhibited by the complainant. [64] It is clear from R. v. K. (A), supra and R v. F. (D.S.) (1999), 43 O.R. (3d) 609 that to the extent the appellant relied on matters such as late disclosure and aberrant behaviour as undermining the complainant’s credibility, it was open to the Crown to rebut that evidence by showing that that very behaviour could well have been the product of the alleged sexual abuse. It is important, therefore, to distinguish between the use of expert evidence for two purposes. First is evidence to explain that matters that might otherwise be thought to undermine the complainant’s credibility may themselves be the product of abuse. Second is evidence that suggests that post-abuse behaviour amounts to affirmative proof of sexual abuse. The first is admissible but the second is not. [65] The issue, accordingly, is whether Dr. Voysey’s evidence, and in particular the twenty four point, check-list he used as a demonstrative aid, was appropriately confined to the first category, or whether it created an unacceptable risk that the jury was invited to conclude that they should accept the complainant’s evidence because she exhibited the signs of post- abuse trauma. [66] In my view, on a fair reading of the record and the trial judge’s instruction to the jury, that unacceptable risk is not made out. In the first place, throughout his evidence, Dr. Voysey made it clear that he could not say whether the complainant’s allegations of sexual abuse were true or false. At the outset of his evidence he explained: My job is not to determine the truth or otherwise of a possible criminal situation. I think that’s the task of the fact finders and the police. My task is to help the patient deal with the reality they find themselves in…. He reiterated at various points during his examination-in-chief that he had made no effort to look for extrinsic evidence of sexual abuse, nor had he taken any steps to verify the complainant’s allegations of sexual abuse. Dealing specifically with the check-list, Dr. Voysey repeated that he was not an investigator of the facts and that he had to depend on what the complainant told him. He used the check-list only to assess the severity of the trauma and he insisted that he expressed no view as to the cause of the trauma. On cross-examination, he emphasised that as a psychiatrist he was not in a position to determine whether or not abuse had occurred: A. There’s no sexual abuse syndrome. There is nothing I could find as a psychiatrist that would find evidence of sexual abuse. Q. Is [sic] there any indicators you could point to that would show the person probably hasn’t been abused? A. That’s the problem. We don’t know. We can’t affirm it and we can’t deny it, that I am aware of. No forensic psychiatric evidence that can answer the factfinders yes or no. He also agreed that many of the post traumatic stress disorder symptoms exhibited by the complainant were frequently displayed by non-abused children. [67] In her charge to the jury, the trial judge reiterated the point that Dr. Voysey did not purport to verify the complainant’s allegations. In reviewing Dr. Voysey’s evidence, she stated as follows: Dr. Voysey testified that it is not his job to determine the truth or otherwise of what she [the complainant] told him and he did not attempt to do so. He diagnosed [the complainant] with a major depression and having borderline personality disorder traits, attention deficit, hyperactivity disorder and post traumatic stress disorder. The trial judge went on the review Dr. Voysey’s evidence of the factors exhibited by the complainant from the check-list and concluded as follows: On cross-examination Dr. Voysey testified that a psychiatrist cannot tell if a person has been sexually abused. They have syndromes after, post traumatic stress disorder, depression, suicidality, personality disturbances, drug abuse, damage to life. [68] The trial judge also reminded the jury that Dr. Voysey was entirely dependent upon the facts as related by the complainant. Now Dr. Voysey is treating [the complainant] as a person who has been sexually abused, but in coming to that diagnosis he relied on what she told him and if what she told him wasn’t correct, then his diagnosis wouldn’t be correct. [69] On behalf of the respondent, Ms. Pomerance fairly conceded that if the twenty-four point check list were taken in isolation, it would clearly be the cause for concern as it might well be taken to suggest that the symptoms of trauma support the truth of the allegations of sexual abuse. The check-list was not, in my view, probative of the issues and for that reason, it should not have been used as a demonstrative aid. However, I accept Ms. Pomerance’s submission that the check-list cannot be viewed in isolation but rather must be read in conjunction with the evidence that Dr. Voysey gave and with the trial judge’s instructions to the jury. Dr. Voysey was clear in his evidence that he did not use the check-list as a diagnostic tool to determine whether the complainant had been sexually abused. Indeed, he completely disclaimed any capacity to make such a diagnosis in his role as a psychiatrist. This point was reiterated to the jury by the trial judge in her charge. In my view, to accept the appellant’s submission would be to accept that the jury misunderstood the evidence of Dr. Voysey and disregarded the direction of the trial judge. [70] The trial judge made specific reference to Dr. Voysey’s evidence as bearing upon the complainant’s credibility. In my view, this is not fatal. As I have already noted, R. v. K. (A), supra clearly allows the Crown to meet an attack on a complainant’s credibility with evidence to explain what might otherwise seem to be indicators of unreliability. With the benefit of hindsight and this court’s decisions in R. v. K. (A), supra, and R. v. F. (D.S.), supra, both handed down long after the trial in this matter, the distinction between rebutting an attack on credibility and “oath-helping” could have been made more clearly. However, the trial judge did warn the jury that it was not Dr. Voysey’s job to determine the truth of what the complainant said, and that he did not purport to do so. Reading the charge as a whole, I am not persuaded that reversible error has been demonstrated. SENTENCE APPEAL [71] The appellant also appeals his sentence of eight years. In my view, there is no merit in the sentence appeal. In her reasons for sentence, the trial judge pointed out that this was a case of protracted abuse in which the appellant had effectively terrorised the complainant and her mother through exploitative distortion of their religious and spiritual beliefs. The appellant preyed on the vulnerability of the complainant and subjected her to a form of mental torture. The complainant had suffered significant trauma as had her mother. While the sentence was clearly at the high end of the range, in these circumstances, I am not persuaded that it was demonstrably unfit. CONCLUSION [72] Accordingly, I would dismiss the appeal against conviction. I would grant leave to appeal sentence but I would dismiss the sentence appeal. “Robert J. Sharpe J.A.”