R. v. Akumu

2017 BCSC 383 R. v. Akumu

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Akumu, 2017 BCSC 383 Date: 20170308 Docket: 26936 Registry: Vancouver Between: Regina v. Moreen Akumu and Mohammed Boima Restriction on publication: Pursuant to ss. 539 and 486.4 C.C.C. Before: The Honourable Madam Justice Fisher Reasons for Judgment Voir Dire #7 - Admissibility of expert opinion evidence Counsel for the Crown: D. Nearing H. Burley (A/S) Counsel for the Accused Akumu: K.L. Mirsky Counsel for the Accused Boima: V.L. Hartney S. Mansfield Place and Date of Trial: Vancouver, B.C. March 1 - 2, 2017 Place and Date of Judgment: Vancouver, B.C. March 8, 2017 [1] The Crown sought to adduce expert opinion evidence from Julia Evans, a Sexual Assault Nurse Examiner, who examined the complainant, A.W., at the Vancouver General Hospital on the night of May 8, 2014. On behalf of Mr. Boima, Ms. Hartney objected to having Ms. Evans qualified as an expert witness. A Mohan voir dire was held, after which I ruled the evidence admissible, with reasons to follow. These are those reasons. Procedural background [2] Ms. Evans was scheduled to testify at 2:00 pm on March 1, 2017. Prior to the lunch break that day, Crown counsel advised the Court that she was prepared to elicit only factual evidence from Ms. Evans without qualifying her as an expert, in an effort to accommodate Ms. Hartney's objection and avoid further delay. She

took this position because she intended only to elicit evidence from Ms. Evans about her physical examination of A.W., the procedures she followed and the forensic evidence she collected; she did not intend to elicit her opinion about the possible causes of A.W.'s injuries. [3] However, when Ms. Nearing advised the Court that she intended to lead some evidence about Ms. Evans' nursing background, training and experience in relation to the conduct of a sexual assault examination, Ms. Hartney objected. She submitted that this was not relevant to the factual evidence to be adduced, and referring to her as a Sexual Assault Nurse Examiner was prejudicial as it implied that she examined persons who had been sexually assaulted. This, she said, was important to her position that there was no sexual assault because the sexual encounter between A.W. and her client was in fact consensual. [4] I did not accede to Ms. Hartney's objections, particularly in respect of Ms. Evans' title. It is common in sexual assault trials to have Sexual Assault Nurse Examiners testify and they do so on the basis of specialized training in conducting examinations of persons who present with claims of having been sexually assaulted. [5] I considered this matter further during the lunch break. I was concerned about the difficulty of making a distinction between fact and opinion, especially where a witness has

specialized training and experience beyond that of the judge or jury. When court resumed at 2:00 pm I questioned why Ms. Evans should not be qualified as an expert witness. In responding to my questions, Crown counsel reversed her position and decided to seek to qualify Ms. Evans. Ms. Hartney objected strongly to the Crown's change of position and sought a recess to consider this change of events, which was granted. [6] Further discussions followed and the jury was eventually excused for the rest of the day. Ms. Hartney's main objection was that the Crown was not seeking to elicit an opinion from Ms. Evans and therefore the Mohan criteria were not satisfied. She advised that she was not prepared to cross-examine Ms. Evans on her qualifications and was not prepared to argue the issue, and she sought an adjournment to the next day. [7] Crown counsel advised that her intent had been to limit her questions of Ms. Evans to factual matters, even though in doing so she was constraining herself, in an effort to save time. Given Ms. Hartney's further objections, however, she decided that it would be improper for her to continue this approach. She explained the kind of evidence she would be adducing, much of it involving quite technical explanations of medical terminology. She sought to qualify Ms. Evans to give opinion evidence about the practices and procedures used in the examination,

documentation and collection of exhibits for patients presenting with claims of sexual assault. She did not oppose adjourning the matter to the following day. [8] Ms. Mirsky, on behalf of Ms. Akumu, was prepared to cross-examine Ms. Evans on the basis for which the Crown was putting her forward, either as an expert or otherwise. She wanted her client's Charter rights reserved with respect to any delay caused by this issue. [9] Ms. Hartney continued to object on the basis that she did not know what opinion evidence the Crown was seeking to adduce and wanted a will say statement. Crown counsel was not prepared to provide anything more than what was on the record and what was contained in Ms. Evans' Legal Report and supporting documents, all which were in the possession of defence. I did not consider it necessary for the Crown to provide any further information and I put the matter over to 9:00 am the next day, March 2, 2017. Voir dire procedure [10] This voir dire was declared to address Ms. Hartney's objections in respect of the admissibility of Ms. Evans' opinion evidence. Ms. Hartney submitted that the Crown should be required to call Ms. Evans as a witness in the voir dire in order to determine what her opinion evidence was going to be. The Crown opposed this procedure on the basis that the evidence to be given by Ms. Evans, including the procedures she followed, is clearly

set out in her Legal Report and the hospital records. Ms. Nearing submitted that the admissibility inquiry can be determined on the basis of these documents, all of which were marked as Exhibit 1 in the voir dire. [11] An admissibility, or Mohan voir dire, is part of the court's discretionary gate-keeping function. In R. v. Hong, 2015 ONSC 5114, cited by Ms. Hartney, the court was considering the procedure to be followed in such a voir dire in circumstances where the Crown was challenging the admissibility of expert evidence to be proffered by the defence on several substantive bases. Referring to R. v. Mohan, [1994] 2 SCR 9; R. v. Abbey, 2009 ONCA 624 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Boswell J. outlined the framework for considering the admissibility of expert evidence at para. 39: (a) First, the party proposing to call the expert evidence must establish the threshold requirements of admissibility. These include the four factors initially identified in Mohan: (1) that the evidence is logically relevant; (2) that it is necessary to assist the trier of fact; (3) that it is not subject to an exclusionary rule apart from the rule relating to expert opinion evidence; and (4) that it is tendered through a properly qualified expert; (b) Second, the court applies its discretionary gatekeeping function. This is loosely described as a

determination of whether the proffered opinion evidence is "worth the candle". It involves conducting a cost/benefit analysis; a determination of whether the evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from its admission. [12] In Hong, the proposed expert was a cardiologist who had prepared a report about the accused's heart condition. The report touched on the ways in which the condition was manifested on a day-to-day basis, including the manner in which it could have impaired mental functioning, but did not opine about whether symptoms described by the accused in evidence were consistent with this condition. The Crown asserted that the doctor was not qualified to give the opinion and the opinion was neither relevant nor sufficiently reliable. [13] The court determined that it was in a sufficient position to assess the risk of prejudice and the costs associated with the opinion without the need for cross-examination of the doctor on the voir dire. However, it permitted testimony to clarify the doctor's precise opinion and his qualification to give it. In doing so, the court made it clear (at para. 53) that this process was intended only "to provide the court with a sufficient evidentiary basis upon which to make the determinations necessary to apply the Mohan analysis and to

appropriately manage the risks presented by the introduction of expert opinion evidence". [14] In this case, I considered the documents in Exhibit 1 to provide a sufficient evidentiary basis upon which to determine the admissibility of Ms. Evans' proposed evidence. There was no issue as to Ms. Evans' qualifications to give an opinion. The only issue was whether she was giving opinion evidence at all. Opinion vs fact [15] As noted in Watt's Manual of Criminal Evidence, 2013 at 29.01, the distinction between fact and opinion is tenuous and often the separation of one from the other is nearly impossible. [16] "Opinion" was defined in R v Abbey, [1982] 2 SCR 24 as "any inference from observed fact". Generally, an expert opinion provides the trier of fact with a "ready-made inference" which it could not otherwise make without special expertise. In R. v K.A. (1999), 45 OR (3d) 641, Charron JA (as she then was) noted at para. 72: [72] The line between fact and opinion must therefore be kept clearly in mind. A witness, who is an expert in a particular field, may be called simply to give evidence on the facts he or she has observed without offering an opinion based on those facts. To that extent, and if otherwise admissible, this evidence is not subject to the opinion rule. This would be the case, for example, where a treating physician is called to describe the injuries he or she

observed on a patient without offering any opinion on the matter. It is only when a witness purports to give an opinion on certain facts that the opinion rule comes into play. If, in our example, the treating physician goes on to say that it is usual or unusual, as the case may be, to observe this kind of injury in a patient who alleges that sexual intercourse has taken place, the witness is offering opinion evidence and the evidence will be subject to the general rule of exclusion. It will only be admissible if certain established criteria are met. [17] Ms. Hartney submitted that the evidence the Crown proposed to lead from Ms. Evans, being the injuries she observed on A.W., did not offer any opinion and therefore the opinion rule did not come into play. Crown counsel submitted that the evidence would go further than fact, as it would be almost impossible for Ms. Evans, given her expertise, to describe everything she did, and why, without moving into opinion. [18] I certainly appreciate the fine line here given the nature of the evidence proposed to be adduced. Lay witnesses may be permitted to give opinion evidence where it is virtually impossible to separate facts from inferences, but this is only with respect to matters that do not require special knowledge: see R. v. Collins (2001), 160 CCC (3d) 85 (Ont CA) at para. 17; R. v. Graat, [1982] 2 SCR 819. Where a witness has

expertise beyond that of the triers of fact, however, care must be taken to ensure that no opinion is actually proffered. In my experience, it is for this reason that medical professionals such as treating physicians are rarely called to give evidence without being first qualified as experts in their field. [19] In this case, Ms. Evans will be testifying about the procedures she employed in assessing and examining A.W., including the medical and forensic information she obtained, the forensic samples she took, the evidence she seized and the drug and alcohol screening she ordered. In doing so, she will be explaining the reasons why certain things are important in the process, using her expertise. She will also be testifying about the physical injuries she observed on A.W., all of which were documented using medical terminology and much of which will require explanation. She may also be asked whether the injuries are recent. I accept the submissions of Crown counsel that some of this evidence will go beyond fact. Moreover, it will be difficult for the jury to discern the difference between fact and opinion given the technical nature of this evidence. They will also be instructed that it will be up to them to decide the extent to which they will rely on expert evidence. [20] Ms. Hartney raised a further argument of lack of notice in respect of Crown counsel's reference to

tendering evidence from Ms. Evans about bruising. I did not accede to this argument, as this reference was made by Ms. Nearing in an effort to explain the circumstances in which Ms. Evans' evidence could move from fact to opinion. Defence counsel has had all of Ms. Evans' records as well as access to her prior to her testimony and I was satisfied that there were no issues justifying a further inquiry into notice. Conclusion [21] A Mohan voir dire in respect of the admissibility of a Sexual Assault Nurse Examiner is unusual in sexual assault trials. However, in most cases, the witness' evidence includes an opinion as to whether the complainant's injuries were consistent with the allegations of non-consensual sexual activity. Such evidence has its rather obvious controversy, particularly in jury trials. While I appreciate the discrete issue here, I agree with the Crown's prudent approach in seeking to qualify Ms. Evans in the narrower manner proposed. [22] In my view, all of the Mohan criteria are satisfied here: (1) the evidence is logically relevant; (2) it is necessary to assist the jury; (3) it is not subject to an exclusionary rule; and (4) it is to be tendered through a properly qualified expert. [23] Accordingly, I determined Ms. Evans' evidence to be admissible as expert opinion evidence, subject of course, to the Crown qualifying her after a voir dire conducted in the presence of the jury. "Fisher J."