R. v. Dick

2024 BCSC 1978 R. v. Dick

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dick, 2024 BCSC 1978 Date: 20240925 Docket: 187341 Registry: Victoria Rex v. Wayne Michael James Dick Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Justice Majawa Oral Ruling (Voir Dire #4 - Scope of Expert Evidence) Counsel for the Crown: T. Stokes Counsel for the Accused: G. Simair Place and Dates of Hearing: Victoria, B.C. September 23-24, 2024 Place and Date of Judgment: Victoria, B.C. September 25, 2024 Table of Contents INTRODUCTION.. 3 BACKGROUND.. 4 DISCUSSION.. 5 Relevance. 5 Necessity. 6 The Absence of any Exclusionary Rule. 8 The Gatekeeping Function. 8 CONCLUSION.. 15

INTRODUCTION [1] This is my ruling with respect to the Crown's application to admit Suzanne Filion's expert opinion evidence at the trial of this matter which commenced before the jury yesterday, on September 24, 2024. Ms. Filion is expected to testify later this week. [2] In an earlier voir dire (the "Qualification Voir Dire") on August 28, 2024, then case management judge, Justice Fitzpatrick ruled that Ms. Filion was qualified to provide expert opinion evidence in respect of:[1] 1. the forensic examination process including the observation, identification, assessment, and documentation of forensic evidence and injuries generally; and 2. the mechanism and recency of injury to the human body. [3] At the Qualification Voir Dire, it was agreed that other issues of admissibility such as Ms. Filion's impartiality, and the relevance and necessity of her opinion evidence would be determined at a later time. Those other issues of admissibility are the subject matter of the voir dire that gives rise to this ruling. [4] While it is uncontroversial that Ms. Filion can provide evidence as a fact witness, the Crown seeks to admit certain opinion evidence of Ms. Filion flowing from this Court's earlier ruling at the Qualification Voir Dire. The scope of the opinion the Crown seeks to admit is limited. The Crown does not seek to admit a written report or any of Ms. Filion's notes, other

than a diagram which I will discuss briefly later. Neither does the Crown seek to admit any opinion based on hypotheticals, nor does it seek to admit Ms. Filion's opinion about whether the injuries she observed are consistent with those suffered by victims of sexual assault. Rather, the Crown seeks to admit Ms. Filion's opinion with respect to the mechanism and recency of the injuries she observed on the complainant. [5] Counsel for the accused acknowledges that Ms. Filion's evidence will inherently include elements of fact and opinion. As I understand it, Mr. Simair acknowledges that Ms. Filion's opinion as to the mechanism of injury is likely admissible. But he maintains that her opinion as to the recency of injury is not relevant and therefore inadmissible. To the extent that Ms. Filion is permitted to provide opinion evidence, counsel for the accused submits that such opinion should be limited in both its scope and in the language used by Ms. Filion in providing her evidence.

BACKGROUND [6] Wayne Dick is alleged to have sexually assaulted the complainant on January 27, 2023, in Sooke, BC, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Criminal Code"). [7] As this voir dire took place before the complainant testified, the following background facts are taken from the Crown's synopsis. [8] It is not expected to be controversial that Mr. Dick had sexual contact, including intercourse, with the complainant on the day in question. It is anticipated that consent, or honest but mistaken belief in consent, will be key issues at trial. [9] The complainant reported the encounter with Mr. Dick to the police in the early morning hours of January 27, 2023. Shortly before 4:00 a.m. the complainant was transported by ambulance to Victoria General Hospital for a forensic exam. Later that morning, Ms. Filion, a forensic nurse examiner, also known as a sexual assault nurse examiner, conducted a forensic examination of the complainant. The examination produced a written record. [10] Ms. Filion testified at the voir dire and was cross-examined by counsel for the accused.

DISCUSSION [11] To be admissible, expert evidence must meet the four threshold requirements set out in R. v. Mohan, [1994] 2 S.C.R. 9 at paras. 22-23: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. In this case, the onus is on the Crown as the proponent of Ms. Filion's evidence to establish the four threshold requirements. The fourth requirement, that being a properly qualified expert, was already determined during the Qualification Voir Dire and nothing more need be said about it here. [12] Once the threshold requirements are met, I am to engage in what is often referred to as the gatekeeping function where the court balances the potential risks and benefits of admitting the expert evidence to determine whether the benefits justify the risks: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. A trial judge must be vigilant in the gatekeeping function, particularly in the case of a jury trial: R. v. Sekhon, 2014 SCC 15 at para. 46. [13] The impartiality of a proposed expert witness is an issue of admissibility: White Burgess at para.

34. While impartiality is addressed at the time the expert is qualified, it is also factored into the gatekeeping function that this court engages in when balancing the risks and benefits of the proposed expert evidence. While counsel for the accused initially indicated that he would challenge the impartiality of Ms. Filion at this voir dire, he ultimately did not take that position, subject to certain limits he says should be placed upon the language she uses when referring to patients when she provides her evidence before the jury. Relevance [14] At this stage of the admissibility analysis, relevance refers to logical relevance: White Burgess at para. 23 [15] In my view, the mechanism and recency of injuries of the complainant observed by Ms. Filion are logically relevant to the issue of whether sexual intercourse or touching occurred. [16] I come to this conclusion even though, as pointed out by counsel for the accused, it is not expected to be contentious that the complainant and Mr. Dick had sexual intercourse on the evening in question. The formal admission made on behalf of the accused in this case falls short of an admission that vaginal or anal intercourse occurred. Therefore, the age of the injuries to the complainant's vaginal and anal areas, as well as the mechanism of those injuries, is logically relevant to an issue at trial. [17] However, in addition to the

injuries noted in and around the complainant's pelvic area, Ms. Filion observed a number of injuries on the complainant, and the complainant reported pain, or responded as if there was pain, to palpitations administered by Ms. Filion in a number of other locations on her body. These observations are depicted on what was marked as Exhibit 3 in this voir dire. At this time, it is not certain what the complainant will testify to in respect of the origin of the injuries and pain observed by Ms. Filion during her examination as noted on Exhibit 3. [18] Ms. Filion's opinion with respect to the origin and recency of injuries and pain noted by her during the examination is only admissible to the extent that there is other evidence that those injuries arise from the alleged assault. That is because injuries observed by Ms. Filion for which there is no evidentiary basis tying them to the alleged assault are not probative of an issue that must be decided by the jury in this case and therefore are not relevant: R. v. D.R., 2018 BCSC 1555 at paras. 11-17. Moreover, the prejudice to the accused of an expert reciting such extensive injuries and observations without the requisite foundation as to their origin is obvious. Necessity [19] Whether an expert's opinion is necessary depends on whether the proposed evidence provides the trier of fact with information which is likely to be outside the trier's experience and knowledge: R v. Mohan at para.

22. If the trier of fact, the jury in this case, can form their own conclusions without the assistance of the expert opinion, the opinion is not necessary and should not be admitted. [20] It is not controversial that Ms. Filion can provide evidence as a fact witness limited solely to her observations. However, relying on this Court's decision in R v. Akumu, 2017 BCSC 383, Crown counsel submits that the evidence of a forensic nurse examiner, such as Ms. Filion, inherently contains a blend of fact and opinion that the jury would have a difficult time discerning the difference between. Justice Fisher put it this way in Akumu at para. 19: [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. [21] In essence, for the jury to understand Ms. Filion's evidence in respect of the injuries she observed on the complainant, opinions would necessarily be expressed as an aspect of her testimony. Counsel for the accused does not take issue with this general proposition. [22] In my view, Ms. Filion's expert opinion will enable the jury to appreciate the technicalities of the injuries observed by Ms. Filion. Moreover, I find that Ms. Filion's opinion in respect of the recency and mechanism of the injuries she observed on the complainant is information which is likely to be outside the experience and knowledge of the jury. Thus, the proposed evidence meets the necessity requirement. The Absence of any Exclusionary Rule [23] There is no other exclusionary rule that would prevent the admission of Ms. Filion's expert opinion evidence. The Gatekeeping Function [24] Having found that the threshold reliability requirements of Ms. Filion's expert opinion are met in this case, I now must engage in consideration of the court's gatekeeping function where I am to engage in a cost-benefit analysis and weigh the probative value of the proposed evidence against its

prejudicial effect. At the end of the analysis, the question is whether the proposed evidence is sufficiently beneficial to the trial process such that it should be admitted despite the potential harm to the trial process that may flow from its admission: White Burgess at para. 24. [25] At para. 54 of White Burgess, the Supreme Court described the gatekeeping function as follows: [54] Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [26] In my view, this is the appropriate time to carefully scrutinize the proposed opinion and to determine and delineate its scope with reference to the

balancing of probative value and prejudicial effect. This is also the time, in my opinion, to carefully consider the language to be used by the expert in providing her opinion to the jury. [27] In the 2009 decision of the Ontario Court of Appeal in R v. Abbey, 97 O.R. (3d), 330, the court discussed the needs for the trial judge to set the boundaries of the proposed expert evidence which may also include the language used by the expert to provide their opinion. The purpose of doing this is to ensure that any potential harm to the trial process is minimized. As part of this exercise, the trial judge may admit part of the proposed testimony, make modifications to the nature or scope of the proposed opinion, and/or may edit the language used by the expert to frame that opinion. At paras. 62 and 63 of Abbey, Justice Doherty put it this way: [62] The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are

essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal [citations omitted]. [63] A determination of the scope of the proposed expert opinion evidence and the manner in which it may be presented to the jury if admissible will be made after a voir dire. The procedures to be followed on that voir dire are for the trial judge to decide. Sometimes the expert must be examined and cross-examined on the voir dire to ensure that the proposed evidence is properly understood. At the conclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible. He or she will also decide whether certain terminology used by the expert is unnecessary to the opinion and potentially misleading: see R. v. G. (P.), [2009] O.J. No. 121, 242 C.C.C. (3d) 558 (C.A.), at para.

16. Admissibility is not an all or nothing proposition.6 Nor is the trial judge limited to either accepting or rejecting the opinion evidence as tendered by one party or the other. The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame that opinion: see, for example, R. v. Wilson, [2002] O.J. No. 2598, 166 C.C.C. (3d) 294 (S.C.J.). [Emphasis added.] [28] Counsel for the accused argues that Ms. Filion should not describe the mechanism of injury as "blunt force" or "blunt force trauma" when providing her evidence before the jury. Given Ms. Filion's evidence at the voir dire, it appears that the only possible mechanism of injury with respect to the injuries she observed during her examination is blunt force or blunt force trauma. [29] As I understand his argument, counsel for the accused submits that the potential prejudice arising from the use of the terms "blunt force" or "blunt force trauma" outweighs their probative value. Mr. Simair points out that there are two commonly accepted definitions of the noun "force": 1. Strength or energy is an attribute of physical action or movement. E.g. "He was thrown backward by the force of the explosion".

2. Coercion or compulsion, especially with the use or threat of violence. E.g. "They ruled by law and not by force". [30] Although the noun "force" in the forensic term "blunt force" or "blunt force trauma" uses the first more neutral definition above, Mr. Simair submits that the jury is most likely to associate the noun "force" with the second definition above which implies an action by way of coercion or compulsion. [31] Mr. Simair submits that the use of the word "trauma" is also problematic. He points out that there is a commonly understood definition of the word and a different definition that is understood by the medical profession. He submits that the more commonly understood definition is that trauma means a deeply distressing or disturbing experience, whereas the medical or forensic definition in the context of the complaint's forensic exam simply means a physical injury. [32] Putting this all together, counsel for the accused submits that the use of the term "blunt force" or "blunt force trauma" will be prejudicial in that it will suggest that the complainant suffered a distressing or disturbing experience and the injuries observed by Ms. Filion are the result of coercion or compulsion, all of which comes too close to opining on the ultimate issue of consent in this case. Thus, should Ms. Filion be able to provide an opinion on the mechanism of injuries she observed,

counsel submits that she should be limited to saying that the injury arose from a physical action or movement or the use of an object as opposed to saying that the injury was caused by "blunt force" or "blunt force trauma." [33] While I agree with Mr. Simair that it is possible that the jury will attach the meanings to the words "force" and "trauma" as he submits above, I do not agree that Ms. Filion should be instructed to not use these terms when providing her opinion. As I understand her evidence on the voir dire, "blunt force" and "blunt force trauma" as she uses them in conducting her forensic examinations are terms of art. She uses these terms regularly and I expect that they are accepted terms in the field of forensic science. It will most likely be very awkward and unnatural for Ms. Filion to not use these terms when providing her evidence. [34] In my view, the jury is capable of understanding the meaning of these words as used by the expert if they are provided with the appropriate information. It is not uncommon for words to have more than one meaning and the members of the jury are likely to have experience with this in their lived experience. Any prejudicial connotation arising from the use of these particular words can be addressed by counsel in their examinations of Ms. Filion. While it is up to the Crown to decide how to lead its evidence, in my view, it would be

appropriate for Crown counsel to elicit evidence from Ms. Filion in her direct examination that will illuminate the meaning of these terms of art. Counsel for the accused is of course welcome to further explore that on cross-examination, or to raise it on cross-examination if it is not raised in Ms. Filion's evidence in chief. Further, I will consider whether an instruction should be provided to the jury with respect to the meanings of these terms in the forensic context. Such steps would, in my view, eliminate the potential for a prejudicial effect from the use of these terms. [35] Counsel for the accused submits that Ms. Filion should not be permitted to provide her opinion as to how common or uncommon a particular injury observed on the complaint is with reference to her experience as a forensic nurse examiner. At the voir dire, Ms. Filion testified that in her experience, it was not common to see a particular injury that she observed inside the complainant's vagina. At other times, Ms. Filion testified that certain injuries were more or less common. [36] Mr. Simair argues that such evidence should be excluded in the court's consideration of the cost-benefit analysis. In essence, the argument is that such evidence would disproportionately influence the jury in relation to the reliability of that evidence. Mr. Simair points to the Supreme Court of Canada's decision in Sekhon

in support of his position. [37] In Sekhon, a case involving the importation of illegal drugs, the Supreme Court found that evidence of a police expert who testified that he had never personally encountered the use of a blind courier or a drug courier who did not know about the drug that he was transporting, was inadmissible as having no probative value. The Court went further and concluded that in any event, the prejudicial effect of the admission of such evidence would be significant. At paras. 49 and 50, the court explained the problem with such anecdotal evidence as pointed out by Justice Newbury in the court below: [49] In my view, the trial judge erred in relying upon the Impugned Testimony. The fact that Sgt. Arsenault did not personally encounter a blind courier over the course of his investigations is neither relevant nor necessary, within the meaning ascribed to those terms by this Court in Mohan, to the issue facing the trial judge - namely, whether Mr. Sekhon himself had knowledge of the drugs. The Impugned Testimony, though perhaps logically relevant, was not legally relevant because the guilt or innocence of accused persons that Sgt. Arsenault had encountered in the past is legally irrelevant to the guilt or innocence of Mr. Sekhon (see Mohan, at pp. 20-21). In other words, the Impugned Testimony was of no probative value in determining whether Mr. Sekhon knew

about the cocaine in the hidden compartment. It is trite to say that a fundamental tenet of our criminal justice system is that the guilt of an accused cannot be determined by reference to the guilt of other, unrelated accused persons. Moreover, the Impugned Testimony was not necessary because determining whether Mr. Sekhon knew about the drugs is not beyond the knowledge and experience of the judge, and it is certainly not a matter that is technical or scientific in nature. [50] The lack of relevance or probative value is, in my view, sufficient to justify the exclusion of the Impugned Testimony. However, it is worth noting the prejudicial effect that such evidence may have on a trial. I agree with Newbury J.A. to the extent that she found little to no difference between the Impugned Testimony in this case and a homicide investigator being permitted to testify that in all of the cases she or he has worked on, the accused [page291] intended the death of his or her victim. Nor do I see a difference between the Impugned Testimony and a stolen goods investigator testifying that he or she has never seen a case of innocent possession of stolen property, or an experienced fraud investigator testifying that he or she has never seen a case where a senior manager was not aware of fraudulent conduct occurring within the company (A.F., at para. 60). The inherent danger of admitting such

evidence is obvious - as Newbury J.A. pointed out: Anecdotal evidence of this kind is just that - anecdotal. It does not speak to the particular facts before the Court, but has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown's favour, and of coming from the mouth of an "expert". If it can be said to be relevant to the case of a particular accused, it is also highly prejudicial. [para. 27] [38] Mr. Stokes, on behalf of the Crown, acknowledges the concerns raised by counsel for the accused and submits that he does not intend to elicit evidence from Ms. Filion as to how common or uncommon the injuries she observed on the complainant are in her experience. [39] I agree that anecdotal evidence of how common or uncommon the complainant's injuries are do not address the particular facts before the jury and do not assist them in determining whether or not the injuries occurred from consensual or non-consensual sexual contact in this particular case. The admission of such evidence is dangerous coming from an expert in that, as Justice Newbury put it, "it has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown's favour." In the circumstances, the prejudicial effect of such evidence outweighs any probative value that it may have. [40] Counsel for the accused had some concerns with respect

to Ms. Filion's use of the word "survivor" to describe the patients she examines as a forensic nurse examiner. While he does not take the position that this disqualifies her from providing expert evidence on the basis that she is not impartial, he submits that Ms. Filion should avoid using the word "survivor" or the word "victim" when referring to the patients she sees or when referring to the complainant in particular. I agree that the use of such terms could be prejudicial to the accused and that Ms. Filion should avoid using them in the manner described above. If she does use such terms inadvertently during her testimony, an instruction can be provided to the jury in respect of their use. [41] As part of my gatekeeping function I am also to consider whether the opinion evidence sought to be admitted will take more time than it is worth. Even if not providing strict opinion evidence per se, Ms. Filion will in any event be providing evidence of her observations, her dealings with the complainant, her explanation of the forensic examination process and her identification and location of injuries. The opinion portion of her evidence will take little extra time relative to the rest of her testimony. [42] Overall, in my gatekeeping function in this case I am persuaded that a relatively cautious approach should be taken with respect to Ms. Filion's evidence. This is consistent with

the comments of Fisher J., as she then was, in Akumu where she stated: [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. I agree with the Crown's prudent approach in seeking to qualify Ms. Evans in the narrower manner proposed. [43] The Crown in this case has taken a similarly narrow approach to the expert opinion evidence sought to be admitted. [44] The scope of Ms. Filion's admissible opinion evidence within her qualification will be subject to the following at this trial: 1. Ms. Filion may provide evidence as to her observations and recording of objectively observable injuries arising from the alleged assault.

2. In respect of injuries arising from the alleged assault, Ms. Filion may provide opinion evidence as to the mechanism of those injuries and the recency of those injuries.

3. In providing her opinion, Ms. Filion may use the terms "blunt force" or "blunt force trauma" in describing the mechanism of injury. Ms. Filion should explain the meaning of those terms in the context of her work as a forensic examiner.

4. Ms. Filion should avoid using the term "survivor" or "victim" to describe the patients she has seen in her experience as a forensic nurse examiner or to describe the complainant in this case.

5. Ms. Filion should not provide evidence as to how common or uncommon, in her experience as a forensic nurse examiner, a particular injury she observed is on the complainant.

6. Ms. Filion is not to provide her opinion on whether injuries she observed are the result of or are consistent or inconsistent with consensual or non-consensual sexual activity. In my view, the prejudicial effect of such evidence is significant. Such evidence coming from an expert has the potential of usurping the role of the trier of fact.

7. The Crown does not intend to seek, nor will Ms. Filion be permitted to provide, her opinion in respect of hypothetical questions. [45] In addition, when giving her evidence at trial, Ms. Fillion will be permitted to refer to the diagram she marked up during her examination which depicts the observed injuries in the complainant's pelvic area. This diagram was marked as Exhibit 2 on this voir dire and is admissible in the trial, subject to authentication. The admissibility of Exhibit 3, will be determined later should the Crown seek to tender it.

CONCLUSION [46] In my view, the limits that I have imposed upon the scope of the opinion to be provided by Ms. Filion appropriately balances the probative value and prejudicial effect of her evidence and I am satisfied that the evidence is sufficiently beneficial to the trial process such that it should be admitted, despite the potential harm that may flow from its admission. [47] If the scope of her evidence exceeds the limits I have placed upon it, I will seek counsels' input on the need for, and content of, instructions to be provided to the jury with respect to the consideration of her evidence. "Majawa J." [1] The Qualification Voir Dire has since been indexed as 2024 BCSC 1774