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Evidence - Hypotheticals. R. v. P.J.C.
In R. v. P.J.C. (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from convictions for assault and sexual assault on children.
Here the court critically examines the use of hypothetical examples, here those put by the Crown to an expert witness as being prejudicial:(i) The hypotheticals
[46] The Crown argues that the hypotheticals it put to Dr. Haskell were tailored to be efficient and helpful, and the trial judge was entitled to use her answers in evaluating the complainants’ evidence. In its submission, the fact that the hypotheticals were, to a certain extent, relevant to features in the complainants’ testimony at trial and might support their credibility did not cause Dr. Haskell to give evidence that was impermissibly about credibility. The Crown maintains that, but for Dr. Haskell’s evidence, the appellant would have improperly relied on the gaps and frailties in the complainants’ memories to impugn their credibility and reliability. Dr. Haskell’s evidence therefore assisted the trial judge by alerting her to the fact that the inference the defence would be asking her to draw was not the only one available to her.
[47] In my view, after hearing all of the evidence, the trial judge should have recognized that the Crown’s hypotheticals were so close to the actual facts of the case that they prompted Dr. Haskell to provide evidence that improperly bolstered the complainants’ credibility and reliability, and that the prejudicial effect of this evidence far exceeded its probative value. I acknowledge that opinion evidence is not necessarily inadmissible by virtue of it supporting the credibility of a witness: R. v. Oppong, 2021 ONCA 352, 156 O.R. (3d) 401, at para. 58; K.(A.), at para. 96. Still, the outcome of this case was entirely dependent on findings of credibility and reliability, and the hypotheticals risked making the gaps and frailties into features supportive of the complainants’ credibility and reliability and, potentially, evidence of their having suffered the assaults as alleged.
[48] I recognize that properly framed hypotheticals can and should at times be used to elicit entirely appropriate expert opinions: see R. v. G.(P.), 2009 ONCA 32, 242 C.C.C. (3d) 558, at paras. 28-30. Yet, it does not follow that any hypothetical question can properly be put to a testifying expert. Trial judges must remain alive to the possibility that certain hypothetical questions are liable to prompt answers that, viewed in the context of all the evidence presented at trial, are far more prejudicial than they are probative.
[49] In K.(A.), this court cautioned that hypothetical questions should not exceed the legitimate purpose for the expert testimony being presented. K.(A.) was a case involving allegations of sexual assault on children, some historical. The Crown proffered, and the trial judge admitted, expert evidence “to explain that certain behaviour exhibited by the complainants was not unusual for victims of sexual abuse and was not inconsistent with the truth of their allegations”: at para. 59. On appeal, Charron J.A. found that a substantial portion of this evidence was “not sufficiently probative to warrant admission”. That included evidence about “faulty memories in victims of sexual abuse”: at para. 114. Still, she found that some of the expert opinion on a limited subset of behaviours was reliable and cogent and would have been admissible had it not gone beyond expressing an opinion about the occurrence of those behaviours. The problematic evidence had been elicited, in large part, in response to “hypothetical questions that paralleled the specific allegations and the behaviour of the individual complainants”: at para. 131. Charron J.A. held that, “[p]resented in this manner, the evidence was no longer admissible because its prejudicial effect far exceeded its probative value. It was obviously calculated to bolster the credibility of each complainant and as such was not the proper subject of expert testimony”: at para. 135; see also R. v. P.(C.) (1992), 1992 CanLII 6001 (BC CA), 74 C.C.C. (3d) 481 (B.C.C.A.), at pp. 486-87.
[50] Charron J.A. cautioned that hypothetical questions posed to an expert should help the court understand the features of behaviour generally, but not invite the court to “accept each complainant’s evidence regardless of their conduct and notwithstanding the weaknesses of the testimony.” This manner of eliciting expert evidence ought not to “effectively mask the weaknesses of each complainant’s testimony and to cloak it with a semblance of scientific reliability”: K.(A.), at para. 135.
[51] That, however, is precisely what the hypotheticals put to Dr. Haskell did in this case. The first and second hypotheticals, which related to E.M.’s allegations of sexual abuse, exemplify questions giving rise to the concerns expressed by Charron J.A. The first hypothetical was of a child who had been repeatedly sexually assaulted but is unable to recall whether her assailant ejaculated in the course of the assaults. The second hypothetical featured an adult who had been repeatedly sexually and physically assaulted between the ages of seven and nine, and who could not recall the exact sequence, number of events and timeframe when the events took place. Both questions were based on features of E.M.’s evidence that Dr. Haskell had previously noted and analyzed in her report.
[52] In her response to these hypotheticals, and to the others that were put to her, Dr. Haskell explained how the hypothetical subjects, who had been abused, would be expected to exhibit gaps and frailties in their memories, and explained how these gaps and frailties were attributable to the neurobiology of trauma. This evidence did more than equip the trier of fact with information that would assist in assessing the impact, if any, these gaps and frailties in the complainants’ memories could have on their credibility and reliability. Rather than contextualize these features of the complainants’ evidence, it impermissibly suggested that they were more credible because they exhibited the features the expert attributed to persons having suffered prior sexual abuse. Although not explicitly stating that the answers given by the complainants were consistent with sexual abuse, which would be impermissible, the impression left by the testimony, in the context of this case, was in effect the same.[2]
[53] The frailties of memory described in the first and second hypotheticals did not cry out for a scientific explanation. It is hardly surprising that a witness recounting instances of abuse she alleges occurred two decades earlier could not recall the “exact sequence, number of events, the timeframe when the events took place”, or whether their abuser ejaculated. Yet, by relating these frailties in memory to “dissociative amnesia” and “impaired semantic encoding”, Dr. Haskell indirectly “[argued] the theory of the Crown from the witness box and [clothed] it with the aura of infallibility … [associated] with scientific principles”: R. v. D.D. (1998), 1998 CanLII 14607 (ON CA), 113 O.A.C. 179 (C.A.), at para. 17, aff’d 2000 SCC 43, [2000] 2 S.C.R. 275. . Bank of Nova Scotia v. Canada
In Bank of Nova Scotia v. Canada (Fed CA, 2024) the Federal Court of Appeal allows the use of hypothetical examples, essentially as evidence - apparently here as a technique in making legal submissions:(c) Anomalous consequences
[44] It is also worth noting that the Bank’s position appears to lead to potentially anomalous results. A hypothetical example given by the Crown in the Tax Court involved a situation in which the Minister implements the audit adjustment and the loss carryback in two separate reassessments rather than one (as occurred in this case). This example appears to lead to different interest calculations if the interpretation suggested by the Bank is accepted: the single reassessment scenario would see the "“interest clock”" stop when the return for the loss year was filed, but the two reassessment scenario would see the "“interest clock”" continue until the loss carryback was requested, potentially many years later. There is no principled reason why the issuance of one or two reassessments should lead to diverse outcomes and I agree with the Crown that Parliament likely did not intend this result.
[45] The Bank responds to this argument in a couple of ways. First, it suggests that interest is calculated in the same manner regardless of whether there are one or two reassessments because all the reassessments stem from the audit adjustment. In effect, the Bank suggests that Parliament envisaged that there would be an inquiry as to the ultimate cause of a reassessment. In my view, this interpretation is highly unlikely as it brings more uncertainty into the application of subparagraph (b)(iv). If anything, this argument illustrates a weakness with the Bank’s position.
[46] Second, the Bank briefly submitted in oral argument that the hypothetical example may be an unlikely scenario because a separate reassessment could be statute barred. This argument was not fully fleshed out and was too brief to merit a considered response. In any event, even if unlikely, the possibility of anomalous results is a factor weighing against the Bank’s interpretation.
[47] In sum, the hypothetical example illustrates that the Bank’s suggested interpretation may well give rise to anomalous results. In my view, this is another strong factor in favour of the Crown’s position.
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