CHAPTER 1:

BEHAVIOURAL SCIENCES

Chapter 1: Index

1.10 Psychiatry

1:20 Psychology

1:30 Clinical Therapist

1:10 Psychiatry

R. v. Gracie, 2019 CarswellOnt 13310 (Ont. C.A.)

Defence Expert: Dr. Gary Chaimowitz

Crown Expert: Dr. Scott Woodside

Gracie was designated a dangerous offender and sentenced to an indeterminate sentence. The predicate offences arose from Gracie’s failure to disclose his HIV positive status to two women who he had unprotected sex with. Both women contracted HIV. Gracie was charged with and plead guilty to aggravated sexual assault.

Gracie appealed the designation.

In considering the various grounds of appeal raised by Gracie the Court of Appeal reviewed the expert evidence.

The Court summarized the expert evidence as follows:

Dr. Scott Woodside performed the psychiatric assessment ordered under s. 752.1 of the Criminal Code and Dr. Gary Chaimowitz provided expert evidence for the defence. Both experts found that the appellant suffers from antisocial personality disorder. A diagnosis of antisocial personality disorder results from meeting at least three of seven criteria, including failure to conform to social norms, deceitfulness, impulsivity, reckless disregard for the safety of self or others, and lack of remorse. The appellant met all seven criteria.

The appellant’s scores on PCL-R, an instrument used to measure psychopathy, indicated that he had significant psychopathic traits but that he was situated slightly below the cut-off for a formal diagnosis of psychopathy.

The experts also found that the appellant suffered from a marijuana dependence disorder. From their clinical and actuarial evaluation of the appellant, the experts opined that he posed a moderate to high risk for both sexual and violent recidivism. [at paras. 21-22]

The experts also agreed on the following:

• that antisocial personality disorder and psychopathy are generally difficult to treat

• Gracie suffered from a marijuana dependence disorder

• He poses a moderate to high risk for both sexual and violent recidivism

The experts did not agree on Gracie’s treatment prospects.

Dr. Woodside opined that:

He was “moderately pessimistic” about the ability to successfully manage the appellant’s risk in the community. A specific challenge to risk management was the appellant’s demonstrated history of failing to inform his sexual partners of his HIV status despite the counselling he received on multiple occasions. Dr. Woodside also found that the appellant’s professed willingness to participate in treatment was undermined by his ambivalence about the necessity for treatment and what types of treatments he needed, as well as by his struggle to identify treatment targets. [at para. 24]

In contrast, Dr. Chaimowitz:

was slightly more optimistic than Dr. Woodside. As the appellant had not had the benefit of a comprehensive treatment program, it was “possible that should he take the appropriate treatment, treatment directed towards his risk factors, there may be some opportunity for eventual control of his risk in the community.” Dr. Chaimowitz noted that, although the appellant appeared much more stable than before, there was insufficient evidence to say with any degree of certainty whether the appellant could be controlled in the community. [at para. 25]

The Court of Appeal dismissed the appeal.

The Court held that although the trial judge had made two errors there was “no reasonable possibility on this record that the verdict would have been any different (. . .)” [at para. 53]

In dealing with the evidence from the experts the Court of Appeal approved of the trial judge’s reasoning in accepting the evidence of Dr. Woodside.

[t]he sentencing judge assessed all of the evidence and was satisfied that there was no reasonable expectation that anything other than an indeterminate sentence would adequately protect the public. This conclusion that there was no reasonable expectation of controlling the appellant’s offending behaviour was necessarily premised on the sentencing judge’s finding that the appellant’s harmful recidivism and violent pattern of behaviour was intractable. This finding of fact is fully supported by the evidence led by the Crown and, as explained by the sentencing judge, is anchored in his acceptance of Dr. Woodside’s opinion. The sentencing judge explained that “‘the convergence’ of the two diagnoses of antisocial personality disorder and substance abuse disorder makes it unrealistic to expect for Mr. Gracie his control in the community.” A mere hope of control is simply not enough to raise a reasonable doubt in this case. [at para. 41]

R. v. Hartman, 2018 CarswellOnt 22032 (Ont. C.J.)

Defence Expert: Dr. Colin Shapiro

Hartman was charged with the sexual assault of RC. Hartman, RC, RC’s boyfriend MT and others were at a house party. RC and her boyfriend were among the guests that chose not to drive home that night. They shared an air mattress for the night. RC woke up to a “pain in her anus and her clothing down around her thighs. She had no idea how her clothing was taken down.” [at para. 5]. RC woke her boyfriend and yelled that she had woken up “with that man’s dick in her ass.” [at para. 5] Hartman told MT that he was sorry and that “I think I just woke up making out with your girlfriend.” [at para. 5]

Dr. Shapiro was called as a defence expert in “psychiatry, neuropsychiatry, and sleep disorders, including parasomnia and sexual behaviours that occur in the context of sleep disorders.” [at para. 179]. In fact, he is the person who coined the phrase ‘sexsomnia’.

Dr. Shapiro’s qualifications were not contested by the Crown. Dr. Shapiro opined that the sexual assault was perpetrated when Hartman was asleep. The Crown vigorously challenged this opinion in cross-examination.

At the conclusion of the case, the court rejected Dr. Shapiro’s evidence. The Court found:

I find that Dr. Shapiro’s evidence displayed bias and an unwillingness to accept any evidence that contradicted his opinion that Mr. Hartman was suffering from a parasomnia at the time of the incident. It will not rely upon Dr. Shapiro’s evidence in this case. [at para. 294]

Hartman was found guilty of sexual assault. [at para. 344]

R. v. Capay, 2019 CarswellOnt 1274 (Ont. S.C.J.)

Defence Expert: Dr. John Bradford

Capay was serving a sentence at the Thunder Bay Correctional Centre. While there Capay is alleged to have stabbed a fellow inmate, killing him. As a result, he was charged with first degree murder and placed in segregation. For four years and six months the accused was held in segregation, in a cell by himself. [at para. 4]

Capay sought a stay of proceedings on the basis of violations of ss. 7, 9, 12 and 15 of the Charter. The Crown conceded that there were Charter violations but that a stay was not the appropriate remedy.

Dr. Bradford was qualified as an expert and permitted to give “expert opinion evidence in forensic psychiatry and the psychiatric effects of institutional segregation.” [at para. 212]

Dr. Bradford testified that:

the accused experienced an extremely impaired medical and social back-ground, including exposure to alcohol in utero, most likely resulting in a level of cognitive impairment resulting in ADHD. During childhood, the accused suffered a number of significant traumas, including sexual abuse, physical assaults, repeated head injuries, parental alcoholism and marital discord, substance abuse, and violence. Dr. Bradford opined that these childhood experiences left the accused with a basis for a personality disorder and that he presented with a moderate antisocial personality disorder.

Dr. Bradford further concluded that the accused’s time in segregation, particularly the initial period of near-total isolation, almost certainly had a more serious effect on him than it would on many other individuals given the accused’s ADHD, antisocial personality disorder, history of depression, self-injurious behaviour, and suicidality. Dr. Bradford felt that the accused’s time in segregation also resulted in perceptual disturbances and violent and sadistic fantasies.

Dr. Bradford was also of the opinion that the further trauma of segregation compounded the past traumas the accused had suffered and either exacerbated pre-existing PTSD or triggered its development, which is now both chronic and severe. Dr. Bradford opined that this PTSD would persist as a lasting effect of the accused’s prolonged segregation.

Dr. Bradford concluded that the accused’s prolonged segregation has resulted in significant cognitive impairments, in particular, permanent serious impairment of the accused’s memory of events leading up to his time in segregation.

Dr. Bradford advised the court that all of the above has had a significant impact on the assessment of the accused’s mental state at the time of the offence. Dr. Bradford reported that there is “considerable evidence” that the accused was in a “seriously altered or disturbed state of mind, which would support a finding that he was not criminally responsible, or at the very least, [would] have a substantial impact on his culpability short of that finding.”

Dr. Bradford concluded, in his report, that “the effects of segregation, in particular, on Mr. Capay’s memory, impair the ability to determine today the etiology, nature and severity of the altered or disturbed state of mind that the evidence indicates he was in at the time the offence was committed.” [at paras. 264-269]

Dr. Bradford’s evidence was not challenged in cross-examination. [at para. 270]

The Court granted the stay of proceedings.

R v. Lindsay, 2018 CarswellAlta 982 (Alta. C.A.)

Defence Experts: Dr. Hediger and Dr. Nesca

Crown Expert: Dr. Rodd

Lindsay was convicted after trial of murder and obstruction of justice. He appealed the conviction arguing that the trial judge had erred in rejecting his defence of ‘not criminally responsible’.

Lindsay and the victim met while both were patients at the Alberta Hospital. They began a relationship which was described as “on again off again”. Both used crack cocaine. A couple of months after the two met Lindsay twice stabbed the victim in the side of the head. The victim survived and Lindsay plead guilty to assault with a weapon. Their relationship resumed after this incident. Shortly thereafter the victim disappeared and her body was not located for a couple of months.

Lindsay confessed that in August of 2011:

he and the deceased were parked in her car smoking drugs, he stabbed her with a pencil in both eyes. He then made a tourniquet with a shoelace and strangled her. He threw her body into the back seat of the car and drove to an old construction site where he drove over her head twice to ensure she was dead. He then bought a sleeping bag and blanket to cover the deceased and a shovel, two rakes and gloves to use to dispose of her body.

He dropped the body by a wellsite near Innisfail, threw her wallet and car keys in a sewer, and her purse in a ravine in Edmonton. When questioned by the police regarding the deceased’s disappearance, the appellant offered numerous false accounts. The deceased’s body was discovered in October of 2011. [at paras. 5-6]

At trial the defence tendered the expert psychiatric evidence of Dr. Hediger and Dr. Nesca. Dr. Hediger treated Lindsay after the victim disappeared and prior to her body being discovered. Dr. Hediger conducted an assessment for criminal responsibility at that time and fond that Lindsay suffered from schizophrenia and substance abuse disorder.

Dr. Nesca’s evidence was summarized as follows:

Dr. Nesca opined that the appellant was suffering from schizophrenia at the time he killed the deceased which “occurred within the context of a psychotic envelope that left Mr. Lindsay fearing for his life and feeling compelled to act in self-defence. As such, it is my opinion that the alleged offences are the direct result of a mental illness that left Mr. Lindsay unable to accurately appreciate reality.” [at para. 11]

In reply the Crown tendered the expert evidence of forensic psychiatrist, Dr. Rodd. The Crown expert:

testified that evidence suggesting the appellant suffered from non-intoxicant caused schizophrenia at the time of the offence was inconclusive. Dr. Rodd opined that the appellant possessed a rational understanding of the legal and moral wrongfulness of his actions. [at para. 12]

The trial judge rejected the defence of not criminally responsible. The Court of Appeal summarized the trial judge’s findings with respect to each of the experts as follows:

The trial judge placed restricted weight on the evidence of Dr. Nesca because it was weakened by reliance on information from the appellant relating to his mental state at the time of the killing that was not before the court. The trial judge was also troubled by some of Dr. Nesca’s psychometric testing and had concerns regarding his in-court testimony, which he found to be “results-driven”, involving a “selective approach” that was “troubling”.

The trial judge also gave little weight to Dr. Hediger’s opinion, in part because it was restricted to the appellant’s mental state at the time of the British Columbia offences, and because the evidentiary foundation for the opinion that the appellant suffered from schizophrenia and substance abuse disorder at the time of the British Columbia offences, was lacking.

As to Dr. Rodd’s opinion, the trial judge was concerned that he too relied on information not in evidence and that he failed to personally interview the appellant’s parents. As well, the trial judge noted that Dr. Rodd’s initial responsibility was simply to provide a report to the psychiatrist in charge who was unavailable to testify at trial. [at paras. 14-16]

The Court of Appeal found no error in the trial judge’s approach to the evidence. Of note is that Lindsay did not testify. Thus, the experts each relied on facts not in evidence. Although this type of reliance on second hand information is commonplace, the “more an expert relies on facts not proven in evidence, the less weight should be given” to that opinion. [at para. 22]

The appeal was dismissed.

R. v. Haque, 2018 CarswellSask 268 (Sask. Q.B.)

Defence Expert: Dr. Mansfield Mela

Haque was charged with a number of sexual offences relating to 16 individuals. At the time of these incidents Haque was a medical doctor and all of the allegations occurred in the course of him performing gynecological exams.

Prior to trial Haque brought an application pursuant to section 276 of the Criminal Code to adduce evidence of the prior sexual history of four of the complainants. The prior sexual history in question related to the fact that four complainants disclosed in their police interviews that prior to the incidents with Haque they had been sexually assaulted.

Haque sought to adduce evidence of these prior sexual assaults and have Dr. Mela offer his expert opinion on how this prior abuse could have led the complainants to “perceive an appropriate medical examination as inappropriate.” [at para. 3]

The Crown opposed the application to qualify Dr. Mela as an expert. The defence agreed that if Dr. Mela was not qualified then there was no longer a basis for the 276 application.

The Court noted that:

Dr. Mela is an extremely well qualified forensic psychiatrist. He testified he was aware of his nonpartisan requirements of providing opinion evidence to the Court. He does not know the accused. He does not know any of the four complainants who are the subject of this application. He has not interviewed them. Dr. Mela had examined the statements given by the complainants to the police in order to obtain the factual circumstances surrounding the alleged assault. [at para. 17]

Dr. Mela’s opinion was quite simply that “victims of sexual assault are more likely to misperceive a normal examination as sexual.” [at para. 21]

The court summarized his evidence as follows:

[h]e was unable to opine in general what percentage of previous sexual assault victims would have this misperception. He was confident that he would be able to determine whether a misperception occurred but only if he received significantly more information than had been provided in this case. He testified that there was an increased likelihood to misperceive without being able to quantify in any respect the extent of that increased likelihood in general. In particular, some of the factors that he believed he needed in order to assess whether any of the individual complainants could have misperceived the examination were as follows:

a.      The severity of the sexual assault;

b.      The age of the victim at the time of the assault;

c.      The life trajectory of the victim after the assault;

d.      The location of the sexual assault;

e.      The nature of the assault, including the parts of the body touched as part of the assault;

f.       A final clinical examination;

g.      He would have to ask the victim to confirm the sexual assault; and

h.      The approach of the doctor to the examination and to the complainant. [at para. 21]

The Court declined to qualify Dr. Mela as an expert finding his theory to be ‘novel science’. The Court concluded that:

Dr. Mela was unable to point to any situation in which his theory had been used by other practitioners. He did baldly state that he was confident that other forensic psychiatrists would agree with his theory but offered no objective support for the statement. It is clear that Dr. Mela’s theory does not pass the test outlined in J.-L.J. for acceptance of novel science. It is also clear that Dr. Mela is not a properly qualified expert to provide the particular opinions sought. [at para. 33]

The Court also seemed to be concerned with the fact that Dr. Mela was prepared to “offer to provide opinion evidence as to the impact of media related factors on memory and perception” in the absence of any qualifications in this area. [at paras. 35-36]

R. v. McRae, 2018 CarswellOnt 9994 (Ont. S.C.J.)

Defence Expert: Dr. Helen Ward

John McRae was charged with the second degree murder of his son Michael McRae. At trial the defence sought to tender the report of Dr. Helen Ward a forensic psychiatrist. On the voir dire to determine the admissibility of the report Dr. Ward testified that she had been retained to provide two opinions. First, on self-defence. Second, on the issue of intoxication.

The Crown conceded that Dr. Ward’s evidence on intoxication was relevant, however the Crown opposed the report being tendered as it was replete with opinions which exceeded the permissible scope.

The Court ultimately agreed and held that Dr. Ward would not be permitted to offer any opinion on self-defence. With respect to tendering the report the Court concluded that it could not be put before the jury “because of its potential to confuse the jury as it has confused this Court on the voir dire.” [at para. 30]

R. v. W. (B.D.T.), 2015 CarswellMan 94 (Man. C.A.)

Defence Expert: Dr. Dane M. Hershberg

BW, along with the co-accused TS and two others attended a house party. BW stayed for a period of time then left with one of the others. TS stayed for a period of time until he was kicked out of the party for unruly behaviour. TS was not happy about being kicked out of the party and went to report this “disrespect” to BW and the others. The four returned to the house party, this time armed with a loaded shotgun. BW and TS entered the home. BW, within 38 seconds, shot three different persons. Two were killed. The third lost part of his arm but survived. BW had aimed the shotgun at a woman and her seven-year-old son but did not shoot them. BW and TS fled. They were later arrested and charged.

At trial, BW called Dr. Dane M Hershberg to provide an opinion about his state of mind at the time of the shootings. The trial judge placed no weight on this evidence as it relied, in large part, on information provided by W outside the court. BW was convicted. He appealed. One ground of appeal related to the decision of the trial judge to place no weight on that opinion evidence.

The Court of Appeal rejected this ground of appeal. The court made three comments in relation to the expert opinion evidence offered by Dr. Hershberg about the mental state of BW.

First, it noted that the failure to provide an evidentiary foundation for the opinion was properly viewed by the trial judge as fatal to any weight to be given to the opinion.

In my view, it was open to the judge to place no weight on Dr. Hershberg’s opinion as it was based almost exclusively on his interview of W. (Lavallee at p. 897). [Para. 39].

Second, it noted that the opinion that BW laced “the mental capacity to commit first degree murder was also contradicted by the evidence” [para. 40]. In particular, the court cited his participation in discussions with the others before the murder, his offer to pay for the taxi, his comment to his girlfriend that he was about to breach his bail conditions and his “methodically” targeting the victims in the home [para. 40].

Third, the court noted that the expert’s opinion on the “ordinary stress” of grief on normal persons was not beyond the knowledge of an average trier and likely should not have been admitted:

As a general rule, expert evidence from a psychiatrist following recognized psychiatric procedures is receivable on a person’s mental capacity and state of mind (R. v. Wilband (1966), [1967] S.C.R. 14 (S.C.C.), at 21-22; and R. v. Giesbrecht (1993), 85 Man. R. (2d) 69 (Man. C.A.) at para 20, aff’d, [1994] 2 S.C.R. 482 (S.C.C.)). However, in circumstances such as these, the judge did not need the specialized assistance of a psychiatrist to consider W.’s reaction to ordinary stress from an external cause, because the effect grief plays on normal persons is not beyond the knowledge and experience of a judge or a jury (R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.), at 42). Therefore, I seriously doubt that Dr. Hershberg’s opinion was admissible at all in this trial, because the expert evidence did not meet the Mohan criterion of necessity (R. v. Mohan, [1994] 2 S.C.R. 9 (S.C.C.), at 23-25; and R. v. Pearce, 2014 MBCA 70 (Man. C.A.) at para 89, (2014), 310 Man. R. (2d) 14 (Man. C.A.)). [Para. 42].

R. v. Sinclair, 2013 CarswellAlta 2718 (Alta. Q.B.)

Defence Expert: Dr. Timothy E. Moore

Sinclair was charged with sexual assault. He was 20 years old at the time of the alleged offence. The victim was 15½ years old. The accused was more than five years older than the complainant. The sex was “consensual” in fact. The issue at trial was whether Sinclair exercised due diligence with respect to determining the age of the complainant.

In defence of the charge Sinclair sought to call Dr. Timothy E. Moore — the proposed area of expertise was “fetal alcohol spectrum disorder” [FASD] and the implications of that diagnosis on the “cognitive processes” of the accused.

With respect to qualifications, the court held that Dr. Moore was “eminently qualified” in psychology and the Crown did not take issue with his expertise in FASD. More precisely, the court qualified him as an expert on “cognitive functioning, decision making, planning, and anticipating consequences of one’s actions” [para. 56].

With respect to necessity, the court accepted that explaining FASD and its impact on Sinclair made the evidence necessary (assuming relevance). The jury could not be expected to know this without the assistance of an expert.

With respect to relevance, the court concluded that the evidence would be relevant to the issue of whether Sinclair took reasonable steps to determine the age of the complainant:

Dr. Moore can give evidence on the subjects in which he has been qualified, that is the cognitive functioning of someone with FASD, the decision-making ability, planning capability and anticipation of consequences of someone with FASD, but, in particular, Dr. Moore can assist the court with an understanding the particular diagnosis of Mr. Sinclair with respect to each of these areas. He can assist the trier of fact by interpreting the reports as to Mr. Sinclair’s functioning in each of those areas.

[. . .]

When considering whether David Sinclair took all reasonable steps to ascertain the age of the complainant, the jury will be assisted by the evidence of Dr. Moore. The question that the jury has to determine is what was reasonably required of Mr. Sinclair, not what other steps could have been taken.

[. . .]

The evidence of Dr. Moore may assist the jurors in understanding the accused’s subjective state of mind and circumstances at the time of the offence. It is therefore relevant to the element of the offence concerning whether the accused made all reasonable efforts to ascertain the age of the complainant. [Paras. 73, 76 and 82].