R. v. Horswill

2018 BCCA 148 R. v. Horswill

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Horswill, 2018 BCCA 148 Date: 20180423 Docket: CA44172 Between: Regina Respondent And Michael Scott Horswill Appellant 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 the complainant or witnesses. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Willcock The Honourable Madam Justice Griffin On appeal from: An order of the Supreme Court of British Columbia, dated January 29, 2016 (conviction) and January 9, 2017 (sentence) (R. v. Horswill, 2016 BCSC 298, Prince George Registry 37592). Counsel for the Appellant: T.M. Arbogast Counsel for the Respondent: S.E. Elliott Place and Date of Hearing: Vancouver, British Columbia March 29, 2018 Place and Date of Judgment: Vancouver, British Columbia April 23, 2018 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Madam Justice Newbury The Honourable Madam Justice Griffin Summary: The appellant was convicted of sexual interference with a person under 16. He appeals his conviction on the grounds that the judge misapprehended material evidence and erred in rejecting proffered expert opinion evidence. He

applies for leave to adduce fresh evidence and argues the fresh evidence would undermine critical findings with respect to credibility. HELD: appeal dismissed. The fresh evidence did not meet the test established in Palmer v. The Queen. Its existence was known to the appellant before trial and it was unlikely to have affected the result. The judge did not clearly misapprehend evidence. He did not err in excluding opinion evidence. The evidence excluded was not clearly within the witness' specific field of expertise. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] Michael Scott Horswill was convicted on January 29, 2016, before Williams J. of the offence of sexual interference with a person under 16, contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C‑46. He appeals his conviction. [2] Reasons for judgment are indexed as 2016 BCSC 298. [3] The charge arose from an incident that occurred in the early morning hours of July 17, 2013, at a cabin near Prince George. The complainant was then four years and three months of age. The Crown alleged that while staying at the cabin with the complainant's family, the appellant woke the complainant, took her to the bathroom and digitally penetrated her vagina and anus with soap on his fingers. [4] The Crown called five witnesses at trial: the complainant's father (the "Father"); the complainant's mother

(the "Mother"); the complainant; Catherine Pescolla, an RCMP officer who interviewed the complainant a week after the incident; and a friend of the complainant's parents. [5] The appellant testified in his defence, denying the allegations against him. He called a clinical forensic psychologist, Dr. Hervé, to testify with respect to issues regarding the particular care required in the assessment of the evidence of child victims of sexual assault. The trial judge excluded portions of the expert opinion evidence, for reasons indexed as 2015 BCSC 2648. [6] The trial judge found the description of events provided by the complainant was credible and he accepted it as true. In particular, the judge remarked on the fact that her account of what occurred would otherwise be far outside the life experience of a child of her age. He held, at paras. 100‑03: [100] I have considered carefully the bases which have been advanced to have doubt about her evidence. Those encompass a number of elements, including that there really is no other evidence, that there is no physical evidence to confirm or support the prosecution's case. This is not a case where one would necessarily expect there be some evidence of that sort. [101] All of that considered, I do not find that I have a reasonable doubt in the matter. [102] I have considered carefully the evidence of Mr. Horswill. Regrettably, I do not

believe what he says as to the core issue, the allegation of sexual touching. Furthermore, his testimony does not raise for me a reasonable doubt as to what occurred. [103] In the result, I find the prosecution has proven its case, and I find that on the occasion at issue, Mr. Horswill sexually assaulted the complainant as alleged. Grounds of Appeal [7] The grounds of appeal have shifted over time. Initially, the appellant sought to establish: a) that the trial judge erred in disallowing expert evidence regarding the effect of dreams on memory contamination; b) that the trial judge misapprehended material evidence and arrived at an unreasonable verdict unsupported on the evidence; and c) that the preliminary inquiry judge erred in committing the appellant for trial at the conclusion of the preliminary inquiry on the basis of the evidence tendered by the Crown. [8] Following the exchange of factums, the appellant abandoned the third of the above-noted grounds of appeal, conceding that an appeal does not lie from the committal of the appellant for trial. [9] In the meantime, however, the appellant has sought leave to adduce fresh evidence and advance a new ground of appeal, arguing that new evidence would permit him to establish an explanation for the complainant's ability to describe events far outside the life experience of a four-year-old. Fresh Evidence [10] The appellant

seeks leave to file four affidavits. They can be briefly summarized. [11] The first is an affidavit sworn by Mr. Jenkins, Q.C., defence counsel at trial. He appends to his affidavit a letter he sent to Crown counsel on February 16, 2015, a few months prior to the preliminary inquiry, to which are attached copies of Facebook posts. The Facebook posts are undated. They consist primarily of comments apparently made by the Father's young, female customers who have been made to feel uncomfortable or offended by what they say was sexually improper conduct on the part of the Father. In his letter to Crown counsel, Mr. Jenkins notes: "You may want to digest this information and do what is appropriate". [12] The second affidavit is sworn by a friend of the complainant's family. She deposes that she met the Father and the Mother about 15 years ago. When her daughter K. was 12 years old, K. worked for the Father. On one occasion, K. came home upset, reporting that she had been to the Father's house and that he had tickled and kissed her. The affiant says she confronted the Father with that conduct and he was dismissive. She does not say when the incident occurred. [13] The third affidavit is sworn by K. herself. She deposes that she is currently a university graduate. She says that when she was 12 years old, the Father asked her to come to his home. He massaged her back, removed her shirt

and kissed her back and neck. She became upset and left, returning home and reporting the incident to her mother. She says that at the time of the incident she was "fairly well physically developed". [14] The fourth affidavit is from a former RCMP officer who conducted a private investigation at the request of the appellant's counsel in late November 2017. He says he spoke to K. and her mother after having learned of "possible complaints". He says: "One person informed me that her two sons had identified two young women from their former high school who said they had been sexually assaulted by [the Father]. These two potential victims have yet to be located and interviewed. I also uncovered some further names of possible complainants." [15] When the appellant gave a statement to the police on July 26, 2013, after his arrest, he said: [The Father] is a pig dog. He had sex with somebody under the age and she had a baby. Ahm we know some other really prominent families in, in Prince George that after that happened wouldn't allow their kids to be around him. I found out last night about a story of [the Father] with a twelve year old [K.] a thing at the time she's now twenty, twenty-one she used to work for him. And I hear that he had her workin' at the shop and one day he wants to bring her to his house to work instead. And Ends up running around and tickling her and kissed her and

a twelve year old. Like [16] The appellant says: No evidence was entered at trial regarding the substance of the appellant's allegations made in his statement about the sexual proclivities of [the Father]. No questions were put to the appellant regarding these allegations. Similarly, no questions were put to [the Father] or [the Mother] about allegations of [the Father's] sexual misconduct regarding minors or children. No questions were put to [the complainant] concerning what she may have known about the subject. [17] The appellant argues the fresh evidence "demonstrates that there was a possible miscarriage of justice because the information contained in the allegations of [K. and her mother] are relevant to assessing the credibility of evidence at the trial." [18] The appellant submits that the evidence meets the components of the test for the introduction of fresh evidence on appeal, established in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759 at 775: a) it could not have been adduced at trial with due diligence; b) it is relevant; c) it is credible, in the sense that it is reasonably capable of belief; and d) it could reasonably be expected to have affected the result at the trial. [19] Insofar as the first criterion is concerned, the appellant argues that the evidence was not known at the time of trial and therefore the due diligence requirement is not applicable in the

circumstances. He says he suspected that the Father had engaged in prior sexual misconduct but his suspicions were based on what amounted to "hearsay and innuendo". [20] In my view, however, insofar as the Facebook posts are concerned, the "fresh evidence" the appellant seeks to adduce is still no more than the hearsay and innuendo known to defence counsel before the trial. [21] Insofar as the complaints of K. are concerned, it is clear from his statement to the police upon his arrest that the appellant was aware of the significant details of the K. incident. I see no reason why, if the appellant thought the incident involving K. was relevant in any way to the issues at trial, K.'s evidence could not have been obtained and adduced at trial. [22] The material upon which the appellant relies in support of the application to adduce fresh evidence is seriously deficient. The appellant himself does not claim to have been previously unaware of any of the evidence he now seeks to introduce. The private investigator deposes to the fact that he was informed of the nature of K.'s complaint but does not describe the source of the information, which may well have been the appellant. Mr. Jenkins does not say he was unaware of K.'s complaint, or explain why it was not investigated or why the complainant was not questioned with respect to her sources of knowledge of sexual topics at trial. In

my view, it is not sufficient for appellate counsel, who was not counsel at trial, to say that he has recently become aware of facts he regards as material. The question is whether those facts were known to trial counsel or, with due diligence, could have been known before trial. We have no evidence in that regard. [23] Insofar as the relevance and potential impact of the fresh evidence on the trial is concerned, the argument in the appellant's factum is unclear and confusing: The appellant does not say that the proffered fresh evidence inexorably infers that [the Father] engaged in misconduct against [the complainant] and that this, somehow was transferred to the appellant. But rather, that the fresh evidence can provide a possible explanation as to how the alleged information conveyed by [the complainant] may have unfolded and become misconstrued and exacerbated, as well as how the evidence from [the Mother] and [the Father] could be assessed. For example (and the permutations are considerable), it may shed light on "memory" issues relating to [the Father] . [24] It should be noted that there is no allegation the Father might have been the person that assaulted the complainant. The appellant's evidence at trial was clear that the Father slept through the night in question, and the appellant admitted he took the complainant to the bathroom. [25] In the course of argument

before us, the appellant's counsel suggested that the allegations made against the Father might have resulted in conflict between the Father and the Mother, of which the complainant might have been aware. It was suggested that there may have been conversations involving sexual topics that the young child may have overheard. Counsel suggests it might have been possible, had these issues been canvassed at trial, to undermine the findings in para. 81 of the reasons for judgment with respect to the complainant's credibility: [81] Quite central to my assessment of the credibility of the statement of the complainant is that she was at the time a child just four years old. For her to describe what she described, that is, an adult putting soap upon his fingers and then putting them inside her, is starkly at odds with the life experience of a child that young. I notice as well that she described it causing pain. Common sense would suggest that such an act would likely cause pain. Most people in their life have experienced the burning or stinging effect of soap in their eyes. It seems logical that soap applied to delicate tissue as alleged here would likely do that too. [26] In my opinion, there is nothing in the evidence the appellant seeks to adduce that would undermine any part of those findings by the trial judge. It is mere speculation to suggest the infant complainant might have

become aware of an allegation of misconduct apparently made years before her birth (the appellant thought the incident occurred about eight or nine years prior to the incident) and somehow incorporated that into her recollection or description of an event which was very different from that described by K. [27] In my view, the application to adduce new evidence fails entirely to meet the test described in Palmer. I would dismiss the application. Material Misapprehension or Unreasonable Verdict [28] The appellant's argument that the verdict is unreasonable or unsupported on the evidence relates to the manner in which the trial judge addressed the complainant's evidence with respect to her dreams about the incident, and how he dealt with inconsistencies in her evidence. [29] There is no doubt that there were many inconsistencies in the infant complainant's testimony. The judge clearly wrestled with the quality of her evidence. In the course of weighing the evidence, he observed: [57] It has come to be judicially recognized and understood that children are not the same as adults. They see and experience the world differently. The details they know and recall, what is important to them, may not be the same as one would expect of an adult. Some details may not be there in their memory or their recounting. Allowance may be needed to recognize that. Of course, that is not a basis to

simply ignore or gloss over inconsistencies or inaccuracies, but it provides a context for the analysis in evaluation of the credibility and reliability of a witness's evidence. It means a court must examine the evidence of a child with great care. It does not mean that the criminal standard of proof is to be lessened or relaxed. [30] He was satisfied that the evidence, with respect to the incident giving rise to the charge, was simple and straightforward. At para. 60, he noted: "The version of events she tells is one with which she has quite steadfastly persisted." [31] Significantly, in my view, the judge identified significant parallels between the facts in the case before him and those considered in R. v. Lennax, 2008 BCSC 1227. In that case, the defence pointed to a number of inconsistencies in the infant plaintiff's evidence but the fundamental thrust of it was consistent. The Court found it was improbable that the complainant would be able to describe in detail the sexual acts alleged unless they actually happened to her. [32] Similarly, in the recent case of R. v. R.A., 2017 ONCA 714 at para. 53, aff'd 2018 SCC 13, the majority of the Ontario Court of Appeal upheld the appellant's conviction because, despite some inconsistencies in the evidence of the young complainant, the core of the claim was consistent throughout and unaffected by the inconsistencies. Further, the

complainant provided graphic details of the alleged sexual interference. The Court deferred to the trial judge's acceptance of the complainant's evidence. [33] In my view, it was open to the trial judge to address the inconsistencies in the evidence as he did. I can see no error in law in this regard. [34] The appellant says the judge erred, in particular, in the manner in which he addressed the complainant's evidence with respect to dreams. The trial judge said: [86] In the course of [the complainant's] testimony, the matter of dreams arose, with the proposition that she had dreams featuring elements of the allegation. In the evidence, there seemed to be some basis to contend that she claimed at some point to have had such a dream prior to the events at the lake. I have examined the record in this regard carefully. I am satisfied that the witness had stated quite clearly and definitively that the dreams occurred after the event. [Emphasis added.] [35] The appellant says the trial judge's conclusion at para. 86 was not supported in the evidence and "[the complainant] agreed that the opposite was true, that she had dreams about 'Uncle Scott' [the appellant] before they were at the cabin." [36] In my view, this argument is founded upon a misinterpretation of the reasons for judgment. The appellant interprets the trial judge's statement at para. 86 as an understanding that the

complainant only ever testified that the relevant dreams occurred after the event. He says that is not an accurate description of her testimony. In fact, he says, the complainant's testimony was inconsistent. At times she appears to have admitted that she had dreams about the appellant before the alleged incident, whereas at other times she says that the dreams began afterwards. The appellant's description of the evidence is correct but his interpretation of the reasons for judgment is not. The trial judge clearly was aware of and referred to "some basis to contend that she claimed at some point to have had such a dream prior to the events at the lake". After examining all of the evidence, however, the trial judge accepted a particular version of the complainant's evidence: that her bad dreams were caused by, and followed, the incident that led to the charge. [37] The appellant contends that the trial judge's finding in this regard is unreasonable because it is not supported in the evidence. Having engaged in the same exercise as the trial judge with respect to the evidence, I cannot say he erred in coming to the conclusion that the complainant's dreams first occurred after the event. [38] The first chronological reference to dreams in the evidence before the trial judge appears toward the end of the complainant's statement to police on July 25, 2013. At the conclusion of the

interview, the following exchange occurred: Q Okay, well thank you very much for coming with to talk with me. Is that all the truth? A Yeah. Q The whole story is the truth? A Yeah. Q Okay. All right. A And it was real. Q It was real? A Uh huh. Q Yeah. Okay. A I had a dream about that too. Q Did you? A It was the same one. Q Oh. What was your dream? A It was about Uncle Scott and it was the same one. Q Oh. And what happened in your dream? A It was a little different though. soap really didn't feel it when he put it in my poop hole, when he squirt it in his finger. [39] The Father testified at trial that the complainant described the sexual assault to him on the day following the incident. His evidence with respect to the complainant's dreams was as follows (T. p. 76): Q Did she -- she told you she had had a bunch dreams about Uncle Scott, didn't she? A After this happened, she said -- Q Oh, listen, no -- THE COURT: No. Hold on. Hold on. A No. After this happened -- THE COURT: Hold on. Hold on. Let him -- let him formulate his answer. A After, yeah. THE COURT: Okay. Go ahead. A Yes. No dreams before this. Lots of nightmares after this. Yes. The nightmares have went on for weeks and weeks and weeks. MR. JENKINS: Q I thought you had said that there was no appreciable change in her behaviour within a day or two of this having happened? A No. I've said several times that initially

when this happened she was kind of stand-offish to me. It took a couple days for her to come around. So, within a couple days she came around and she started commenting about the situation to me, asking me, "Why did Uncle Scott hurt me?" Will she have to see him again. Things like that. [40] He was not asked specifically when he was first told of nightmares or asked whether the dreams were described to him. [41] The Mother testified that the details of the assault were disclosed to her by her daughter during the course of the day after she returned from the cabin, and again in the presence of the Father later that day. [42] She testified that the complainant began to have nightmares after the incident (T. p. 122): And more nightmares. Her bedtime to go - to get her to go to sleep - she'd usually fall asleep quickly, but it would be like, "Don't turn the light off. Mommy, don't go. I want to sleep with you." And she was never like that before. [43] She was not asked, in chief or in cross-examination, what dreams her daughter described to her, or when those discussions occurred. [44] At trial, initially on a voir dire, (later incorporated into the evidence at trial) the complainant testified under a promise to tell the truth. She watched the video of her recorded statement to the police. She identified herself and testified that she had been honest and truthful with the police

interviewer. She testified with respect to the events giving rise to the charge only very briefly as follows (T. p. 142): Q Okay. [H]ow much do you remember now about this stuff with Uncle Scott? A Well, I remember that he put soap in my privates and I didn't like it. It hurt me. Q How did it hurt you? A It hurted 'cause it's in my privates. Q Do you know what kind of soap he used? A I do not know. Q Do you remember anything Uncle Scott said to you when you were in the bathroom? A I remember one thing. He said don't tell anyone that I did this to you, else you'll get in trouble. He said to me. Q Okay. Is there anything else you remember? A I forget. [45] Cross-examination initially focused on the complainant's ability to recall her evidence at the preliminary inquiry. It was suggested to her that she had previously advised Crown counsel that she could not say whether she was telling the truth to the police when she gave the recorded statement. She could not remember being asked or answering that question. She initially remembered little of her testimony with respect to dreams but eventually testified as follows (at T. p. 145‑46): Q Now you started to have some dreams about Uncle Scott, didn't you? A I don't know. Q Do you remember me asking you, "You started to have some dreams about Uncle Scott, didn't you?" And you answered, "Uh-huh, mm-hmm." Do you remember me asking you

that and you giving me that answer? A No. Q Do you remember me asking you, "And it was after you had those dreams that you no longer liked Uncle Scott? Is that correct?" And you answered, "Uh-huh". Do you remember me asking you that and you giving that answer? A Yes. I think I remember it now. Q Thank you. And do you remember me asking you whether or not Uncle Scott was stern with you at times and he would make you mad by telling you you couldn't do things, or that you could do certain things, and you saying, yes, he did? Do you remember that? A No, I don't remember it. Q Do you remember me asking you that one of the things Uncle Scott told you not to do was spy on adults sometimes, with you answering, "Uh-huh"? Do you remember that? A No, I do not remember it. Q Do you remember me asking you how many nights you had this dream for and you said two nights? A Yes. Q So you had this dream for two nights? A Mm-hmm. Q And you remember me asking you, "Was that before Uncle Scott came out to the cabin?" And you said, "Yeah"? A Mm-hmm. Q And was that true? A Yes. [Emphasis added.] [46] At Transcript p. 149: Q When you got home, you said you told mommy and daddy about Uncle Scott having wiped you. Did you do that before breakfast or when did you do it? A I did that as soon as we got home. Q Did you do it before daddy left for work? A I told my mommy and my daddy. Q Do you know if it was

as soon as you got home that you told them? A Yes. Q And you said you also told mommy and daddy about your dreams? A Yes. Q And you told them that you'd had those dreams for a couple of nights before you -- before you were out at the cabin with Uncle Scott? A Yes. [Emphasis added.] [47] At Transcript p. 150: Q Do you remember me asking you what your dreams were about and you said it was about Uncle Scott putting soap on your privates? A Yes. Q Do you remember telling me that you had that dream and you didn't like it, so you decided to tell mommy and daddy about the dreams? A Yes. Q And do you remember telling me that you talked to mommy and daddy about these dreams about three times? A Mm-hmm. [48] The manner in which cross-examination was conducted led to some concern on the part of the trial judge (recorded as follows at T. p. 150‑51): THE COURT: I've got a concern with the way that this is proceeding in that you seem to be saying to her, do you remember I asked you this, you gave that answer. But we're not going any further. So all that establishes is that that was evidence given on a prior occasion. MR. JENKINS: I'm going to ask whether all of it's true. THE COURT: Well, I think, with respect, that's a bit much. She's six years old. She's - this is -- she doesn't have the intellectual acumen that ordinary witnesses do. MR. JENKINS: I appreciate that, My Lord. THE COURT: And

to do that in one sweep up, I think, that would probably be -- that would probably be an overload for a conventional witness. I just don't think it's -- I don't think it can work here. [49] Following that exchange, reflecting what I consider to be justified concern with respect to complex questions put to a suggestible witness, the complainant's evidence was reviewed with her on cross-examination on the following day. Again, she did not remember answers she gave at the preliminary inquiry with respect to the truthfulness of her answers to the police recorded on the video. The Court and counsel wrestled with the manner in which the complainant could be examined on her prior evidence in the circumstances. [50] The complainant testified as follows (T. p. 169): Q [W]as it true that you started to have some dreams about Uncle Scott, and after you had those dreams, you didn't like him? A I could not understand, but please say it again. Q Was -- was it true that you started to have some dreams about Uncle Scott, and after you had those dreams you didn't like him? A I -- I -- I had to know what -- I had to - the experience when I was sleeping. And I had it after he did the things to me. Q Is it true that Uncle Scott was stern with you and [your brother] at times? A I could not understand you, please say it again, please. Q Was it true that Uncle Scott was stern with you and [your

brother] sometimes? A I think. Q And did you have -- and was it true that you had this dream for two nights? A Yes. Q And is it true that you had these dreams for two nights before Uncle Scott came out to the cabin? A I -- I knew what he did to me, then I had the dreams -- the bad dream. Q So you are saying it isn't true that you had the dreams before he came to the cabin, is that what you are saying? Is it true that you had the dreams before he came out to the cabin? A Oh, I had the dream when he did -- when he put soap on my private. Q Did you tell the police lady about your dreams? A Yes. Q When you went -- when you had a pee on the toilet in the bathroom, did you fall asleep after you had your pee? A After I took a pee, he put soap on my private and I went back to bed. I fell -- I fell asleep, had the bad dreams in the bathroom. Q And did you tell mommy and daddy about your dreams? A Yes. [Emphasis added.] [51] At Transcript p. 172: Q Was it true, ... that you told me the last time you gave evidence on the video some months ago was it -- was it true that you told mommy and daddy about your dream when you were having breakfast with them in Prince George? A It was true. Q How many times have you talked to mommy and daddy about these dreams? A Once -- I mean twice. Q Three times? A Twice. [52] In re‑examination, Crown counsel asked about the nature of the dreams the

complainant experienced. She said (at T. p. 177): Q My friend here asked you about dreams, do you remember that? A Yes. Q Do you remember what the dreams were about? A Uncle Scott pointing a gun at me and shooting me. [53] Constable Pescolla was asked, in cross-examination, the following questions about dreams (at T. p. 198): Q Did -- did you ever bother to ask the girl about the dreams she told you she was having of Uncle Scott in terms of, number 1, when the dreams occurred in relation to the incident? Did you ever put that to her? A No, the only questions about the dreams are the one in the statements. Q And, and -- and, number 2, did you ever at any time ask the young girl once this issue of dreams was brought up what the dreams consisted of? A Well, I ask her to tell me about her dream. Now, at the end of the statement she's really tired she wants to see her dad. She ki - she's kind of done. She gives me an answer, I didn't push it. Q Were you ever made aware of a dream she had about Uncle Scott where he was trying to shoot her? A No. [54] In my opinion, in light of the complainant's own testimony and that of her mother and father, there was evidence upon which the trial judge could conclude that the complainant began having bad dreams about the appellant only after the incident that led to the conviction. It is possible to read the complainant's evidence in

cross-examination, transcribed at page 169 of the transcript, as a clear and definitive statement that the dreams occurred after the event. It cannot be said that the trial judge was under any misapprehension in this regard, or that it was an error for him to say that she stated clearly and definitively that the dreams occurred after the event. Exclusion of the Evidence of Dr. Hervé [55] The trial judge accepted that Dr. Hervé was a person with special expertise in the field of forensic psychology. He was prepared to permit him to testify concerning specific considerations that should be taken into account in the course of interviewing children. He accepted that it might be necessary to hear evidence from an expert witness on the manner in which an interview of a child should be modelled. He was of the view that doing so would accommodate the topic of memory in children but added the caveat, at para. 24 of the reasons on the voir dire, that he would "[bear] in mind the basic proposition that the court is taken to be fully competent and experienced in that realm." [56] The critical decision of the trial judge and the subject of this appeal is the conclusion at para. 25 of the reasons for judgment in relation to the expert opinion evidence: [25] As for the matter of dreams and their relationship to the issue of child memory, I do not find that the considerations of relevance or

an acceptable level of expertise have been made out. I base that upon the evidence I heard on the qualification voir dire. Accordingly, that will not be an area upon which the witness will be permitted to testify. [57] In the result, the trial judge did not receive into evidence Dr. Hervé's expert report, which he thought would contain a great deal of material going beyond the ambit of the expert's qualification. [58] The appellant says the trial judge erred in this regard because he did not address the criteria for the admissibility of expert opinion evidence described in, among other cases, R. v. Mohan, [1994] 2 S.C.R. 9, and R. v. Abbey, 2009 ONCA 624. The appellant says Dr. Hervé was qualified to express an opinion upon the manner in which dreams may affect children's ability to remember events. He contends that Dr. Hervé's evidence would have assisted in establishing that young children have difficulty differentiating subjective from objective reality. He says this expert opinion evidence was both necessary and appropriate. [59] Dr. Hervé has a Ph.D. in clinical forensic psychology. He was asked a number of questions in relation to his qualifications to address the manner in which dreams may affect children's memories. Specifically, he was asked in chief, at T. p. 264: Q Doctor, what particularly have you done in the area of teaching on, and -- and publishing on dreams and

the effect they can have on somebody's ability to relate what actually happened? A I -- I have not published at all in the area of dreams. My role as an expert in eyewitness memory is to understand the different potential contaminants to memory, and therefore I - I'm aware of various different contaminants, one of which being dreams. And so I have a working knowledge with regards to eyewitness memory - or working knowledge of dreams with regard to their impact on eyewitness memory in different populations, children, adults, and so on. [60] In cross-examination, Dr. Hervé acknowledged that he is not a child psychologist and that he has not undertaken specialized training in assessment and treatment of children. He testified, at T. p. 268: A A good proportion of my work has to do with doing - working with offenders, correct. A Working with children, I probably -- I probably do an interview a year, of a child. And that's the only type of work that I would do with children, in terms of face-to-face contact. Like I said, I'm not a child psychologist. My expertise is very specific with children, with regards to doing investigative interviewing and evaluating, investigative interviews and memory, in that area. I'm not at all saying that I'm a child psychologist. [61] Dr. Hervé was unable to describe any training that particularly qualified him to express an opinion on childhood

dreams; the only expertise he has with respect to dreams is what he knows about memory generally. This is the first case in which he had been asked to address the manner in which dreams might affect a child's recollection of events. He acknowledged that research into the field of children and dreams is quite limited. Preschool children are underrepresented in dream research because they are more difficult to interview. He questioned the methodology of the few studies that have been done in this area. He was not aware of any peer-reviewed research on the relevant question. He said this is not something that surfaces frequently and because of that "the base rates for this behaviour make it difficult to research properly". He suggested that the question whether children might have difficulty differentiating dreams from reality was "not a controversial issue" but, despite being offered several opportunities to do so, Dr. Hervé did not refer to any research or studies in support of the views he expressed. It is unclear to me, having reviewed the transcript of Dr. Hervé's evidence, whether he was speaking of generally accepted scientific opinion or common sense when he described how dreams might colour a child's perception of events. [62] The jurisprudence is rife with examples of cases in which the courts have wrestled with expert evidence of behavioural scientists. In R. v.

McIntosh (1997), 35 O.R. (3d) 97 at 102‑3 (C.A.), Finlayson J.A. noted: In my respectful opinion, the courts are overly eager to abdicate their fact-finding responsibilities to "experts" in the field of the behavioural sciences. We are too quick to say that a particular witness possesses special knowledge and experience going beyond that of the trier of fact without engaging in analysis of the subject-matter of that expertise. [S]imply because a person has lectured and written extensively on a subject that is of interest to him or her does not constitute him or her an expert for the purposes of testifying in a court of law on the subject of that specialty. [63] In a somewhat different context, the Supreme Court of Canada in R. v. Find, 2001 SCC 32 at para. 59, reminded us that courts should be particularly wary of statements by experts in the field of human behaviour that amount to statements of assumptions, offered without a supporting foundation of evidence or research. [64] In the leading American authority in this field, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 at 593‑94 (1993), Blackmun J., writing for the unanimous Court, helpfully identified questions to determine whether a theory or technique is scientific knowledge that will assist the trier of fact. Among these were the following: a) Whether the proffered opinion is a hypothesis that may be tested to

see if it can be falsified. b) Whether the opinion has been subjected to peer-review and publication. In this regard the Court noted, at 593‑94: Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61‑76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130‑133 (1978); ReIman & Angell, How Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised. c) Whether a particular scientific technique has a known potential error rate, or standards for controlling the

technique's operation. d) Finally, the Court noted "general acceptance" can have a bearing on the inquiry. This criteria may call for explicit identification of a relevant scientific community and determination of a particular standard of acceptance. [65] As this Court noted in R. v. Meyn, 2003 BCCA 401 at para. 54, rulings on the admissibility of expert opinion evidence are often specific to the circumstances of the case. Such decisions are discretionary and we owe deference to the trial judge's assessment of the evidence of expertise and the necessity of expert opinion evidence. In R. v. J.‑L.J., 2000 SCC 51, Binnie J., for the Court wrote: 61 The Mohan analysis necessarily reposes a good deal of confidence in the trial judge's ability to discharge the gatekeeper function (Malbœuf, supra). ... The trial judge's discharge of his gatekeeper function in the evaluation of the demands of a full and fair trial record, while avoiding distortions of the fact-finding exercise through the introduction of inappropriate expert testimony, deserves a high degree of respect. [66] In my view, it was appropriate for the trial judge to be skeptical of Dr. Hervé's opinion in relation to this particular question. He was not qualified as a child psychologist and could not, therefore, speak from broad personal experience; he was not able to refer to generally accepted studies or peer-reviewed

research in relation to the specific question he was asked; he did not refer to the support of a particular scientific community. The trial judge was called upon to exercise his discretion as a gatekeeper in ensuring that the Court did not receive unnecessary opinions, or opinions from individuals unqualified to assist the court with particular expertise. In my view, that role was carefully exercised. The trial judge accepted Dr. Hervé's qualifications generally. He placed some weight upon Dr. Hervé's opinions in relation to questions which he was particularly qualified to answer. I cannot say he erred in the exercise of his discretion in excluding opinions which could not be shown to be founded upon particular expertise or knowledge. Disposition [67] I would dismiss the application to adduce fresh evidence and dismiss the appeal. "The Honourable Mr. Justice Willcock" I agree: "The Honourable Madam Justice Newbury" I agree: "The Honourable Madam Justice Griffin"