R. v. Aminian

R. v. Aminian Collection Decisions of the Court of Appeal Date 1999-11-10 Docket numbers C30950 Judges McMurtry, Roy; Finlayson, George Duncan; O’Connor, Dennis Subject Criminal Decision Content DATE: 19991110 DOCKET: C30950 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. SHAHIN AMINIAN (Appellant) BEFORE: McMURTRY C.J.O., FINLAYSON and O’CONNOR JJ.A. COUNSEL: Anil K. Kapoor for the appellant Christopher Webb for the respondent HEARD: November 4, 1999 On appeal from the conviction of Justice Speyer dated March 13, 1998 ENDORSEMENT [1] There are two issues raised in this appeal. The first relates to the admissibility of the expert evidence of Dr. Oliver. [2] Dr. Oliver was qualified to give opinion evidence regarding injuries to the genital tract and normal and abnormal injuries to that area. She expressed the opinion that the injury to the complainant’s vaginal tract was consistent with forced penetration and inconsistent with consensual sex. [3] Dr. Oliver also expressed the opinion that the complainant did not have the mental capacity to understand the mechanics of sexual intercourse or to understand what the vagina was. She based this opinion on her clinical experience in interviews she had conducted as a member of the sexual assault team at Sick Children’s Hospital with thousands of young females and also on her own interaction with the victim. She agreed that she did not have expertise in the assessing the intelligence of developmentally delayed persons. [4] The appellant objects that Dr. Oliver was not qualified to express an opinion in either of these areas and that her testimony should not have been admitted. In our view, any deficiencies in her expertise go to the weight and not the admissibility of her evidence: see R. v. Marquard (1992), 85 C.C.C. 193 at 224. We see no basis to interfere on this ground. [5] The second ground of appeal is that the verdict of the trial judge was unreasonable. After reviewing the evidence, the trial judge set out his conclusions as follows: … I have read with care the American authorities submitted to me by Mr. Kapoor dealing with the degree of mental incapacity necessary to vitiate consent and the rights of the mentally infirm to engage in sexual activity. However, in this particular case, we have as vulnerable and immature an adolescent as one might imagine. She was just fifteen months past having statutory protection given to children relating to consent as provided in s. 150.1 of the Criminal Code. Yet [the complainant’s] need for protection was even more than that accorded ordinary children of tender years. [The complainant] was ripe for being sexually exploited, as indeed she was on not one but two occasions with strangers at the same picnic. Moreover, it is obvious to everyone that [the complainant] was a special needs young person. There is no doubt in my mind that [the complainant] had no appreciation of the nature and consequence of the sexual intercourse, nor the consensual ability to choose with respect to the sexual activity. To put the matter slightly differently, [the complainant’s] mental incapacity was such that she did not have the cognitive or intellectual capacity to understand or comprehend the sexual activity in question, its implications, and the right to choose or not to choose to engage in it. The accused preyed on [the complainant’s] vulnerability to seek affection. The accused, a mature adult, would immediately observe [the complainant’s] striking features and obvious mental retardation. Moreover, the specific act of intercourse perpetrated by the accused was consistent with a forced and resisted act, and not with an act that was consensual. Dr. Oliver, the head of the Adolescent Gynaecology Department at Sick Children’s Hospital, and an assistant professor of gynaecology at the University of Toronto, struck me as an exceptionally talented and reliable witness. Dr. Oliver characterized the injury to [the complainant’s] vagina wall as “serious” and “traumatic”, and the type of injury seen in a difficult obstetrical delivery using forceps. I accept Dr. Oliver’s opinion that the injury was consistent with forced penetration and inconsistent with consensual intercourse for the reasons I recorded with respect to her testimony earlier in these reasons. In the result, the accused shall be convicted as charged. [6] In our view, these conclusions were fully supported by the evidence. We are not persuaded that this was an unreasonable verdict. [7] The appeal is, therefore, dismissed.