R. v. M.C.,

• Jurisdiction: Ontario
• Judge: Strathy, C.J.O., Watt and Hourigan, JJ.A.
• Neutral Citation: 2014 ONCA 611
• Citation: 2014 ONCA 611,(2014), 325 O.A.C. 1 (CA),314 CCC (3d) 336,325 OAC 1,(2014), 325 OAC 1 (CA),325 O.A.C. 1
• Date: 25 June 2014
• Court: Court of Appeal (Ontario)

R. v. M.C. (2014), 325 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. AU.031

Her Majesty the Queen (respondent) v. M.C. (appellant)

(C55380; 2014 ONCA 611)

Indexed As: R. v. M.C.

Ontario Court of Appeal

Strathy, C.J.O., Watt and Hourigan, JJ.A.

August 27, 2014.

Summary:

About two years after an alleged sexual assault, the complainant collapsed and had a seizure-like episode. At the accused's trial for sexual and other offences arising out of the original incident, the Crown proffered the evidence of a clinical psychologist (Dr. Wolfe) who linked the complainant's seizure-like behaviour to the prior sexual assault the complainant alleged the accused had committed. The trial judge admitted the evidence, found it compelling and important independent corroboration of the complainant's allegations, and found the accused guilty of all the offences with which he was charged. The accused appealed.

The Ontario Court of Appeal allowed the appeal. Evidence of the complainant's utterances during the seizure-like episode was not admissible as evidence of the truth of their contents, and thus could not be relied upon as independent corroboration of the complainant's allegations. Further, Dr. Wolfe's opinion about the nature of the seizure-like episode and its origins in the sexual assault alleged by the complainant was beyond the scope of his expertise and otherwise inadmissible for want of proof of essential foundational facts. The court set aside the convictions and ordered a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See Evidence - Topic 1031 ].

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - About two years after an alleged sexual assault, the complainant collapsed and had a seizure-like episode - At the accused's trial, the Crown proffered the evidence of a clinical psychologist (Dr. Wolfe) who linked the complainant's seizure-like behaviour to the prior sexual assault the complainant alleged the accused had committed - The trial judge admitted the evidence, found it compelling and important independent corroboration of the complainant's allegations, and found the accused guilty - The Ontario Court of Appeal allowed the accused's appeal and ordered a new trial - Evidence of the complainant's utterances during the seizure-like episode was not admissible as evidence of the truth of their contents, and thus could not be relied upon as independent corroboration of the complainant's allegations - The complainant's words, coupled with his actions during the seizure-like episode, amounted to a statement consistent with his testimony at trial that the accused had sexually assaulted him in a particular way - As a prior consistent statement, the complainant's utterances during the seizure-like episode were inadmissible unless they fell within an exception to the exclusionary rule - They were not admissible under the narrative exception as they were not truly essential to the unfolding of the narrative - Even if the utterances were admissible under the narrative exception, admission on this basis neither proved the truth of what was said, nor furnished a basis for any inference that the case for their truth was more compelling - The hearsay rule extended its exclusionary reach to implied assertions and required them to shelter under a traditional or the principled exception to the rule if they were to be received at trial - The utterances lacked sufficient threshold reliability to justify their reception under the principled exception - See paragraphs 80 to 97.

Evidence - Topic 1176

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - General - [See Evidence - Topic 1031 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 1031 ].

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - [See Evidence - Topic 7012 ].

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - About two years after an alleged sexual assault, the complainant collapsed and had a seizure-like episode - At the accused's trial, the Crown proffered the evidence of a clinical psychologist (Dr. Wolfe) who linked the complainant's seizure-like behaviour to the prior sexual assault the complainant alleged the accused had committed - The trial judge admitted the evidence - The accused was found guilty - The Ontario Court of Appeal allowed the accused's appeal - The opinion evidence of Dr. Wolfe should not have been admitted for two reasons - First, Dr. Wolfe, a clinical psychologist with neither practical nor academic expertise in non-epileptic seizure episodes, proffered an opinion beyond the scope of his expertise - A review of a single survey article did not qualify Dr. Wolfe to give an expert opinion outside the field of his expertise - Second, Dr. Wolfe's opinion was otherwise inadmissible for want of proof of essential foundational facts - See paragraphs 98 to 101.

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, refd to. [para. 33].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 2009 ONCA 624, refd to. [para. 33].

R. v. Baldree (C.), [2013] 2 S.C.R. 520; 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 50].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 50].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 52].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 52].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 53].

R. v. Youvarajah (Y.) (2013), 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 56].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 58].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 83 C.C.C.(3d) 5 (C.A.), refd to. [para. 60].

R. v. Edgar (D.J.) (2010), 269 O.A.C. 171; 260 C.C.C.(3d) 1; 2010 ONCA 529, refd to. [para. 63].

R. v. Mathisen (P.J.) (2008), 242 O.A.C. 139; 239 C.C.C.(3d) 63; 2008 ONCA 747, refd to. [para. 63].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 64].

R. v. A.E.R. (2001), 151 O.A.C. 105; 156 C.C.C.(3d) 335 (C.A.), refd to. [para. 65].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 66].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81; 82 C.C.C.(3d) 338, refd to. [para. 66].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 70].

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42; 2005 SCC 72, refd to. [para. 70].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 70].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 70].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 75].

R. v. McIntosh (O.) and McCarthy (P.) (1997), 102 O.A.C. 210; 35 O.R.(3d) 97 (C.A.), refd to. [para. 75].

R. v. Sekhon (A.S.) (2014), 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 75].

Authors and Works Noticed:

Paciocco, David M., The Perils and Potential of Prior Consistent Statements: Let's Get it Right (2013), 17 Can. Crim. L. Rev. 181, pp. 184 [para. 59]; 187 [para. 60].

Counsel:

Marie Henein and Matthew Gourlay, for the appellant;

Benita Wassenaar and Jennifer Mannen, for the respondent.

This appeal was heard on June 25, 2014, before Strathy, C.J.O., Watt and Hourigan, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Watt, J.A., and was released on August 27, 2014.