The case is important more broadly because some recent Ontario cases rely upon expert opinions based on hearsay. Pike may be used to suggest such reliance is in error.
The British Columbia Court of Appeal rules:
Trial Judge's Reliance on Unproven Allegations
[44] The trial judge erred by relying on allegations of conduct that were not proven beyond a reasonable doubt. This reliance arose both directly and indirectly – directly, through the inclusion of unproven allegations in the trial judge's analysis, and indirectly, through the trial judge's reliance on expert opinion evidence based in significant part on allegations of behaviour never proven in court.
Direct Reliance on Unproven Allegations
[45] The crux of the trial judge's decision was his finding that the conviction for sexual assault arising from the July 7, 2001 incident was part of an escalating pattern of predatory sexual violence. The trial judge described the pattern as including:
a) The appellant's 1988 conviction (when he was 14 years old) for sexual assault of his 13-year-old foster sister. The appellant said he merely pushed the girl, and only pleaded guilty on advice from his lawyer. No evidence about the details of the offence were available, either to the psychiatrists or the court;
b) A 1990 incident in which the appellant was charged with sexually assaulting his ex-girlfriend. The charges were not pursued, and no conviction resulted. Included within Dr. Bartel's report are references to the alleged details of the assault, although those facts were not proven at the hearing;
c) A 1998 conviction for assault against his common law spouse. No other evidence was led as to the circumstances of the conviction. Dr. Bartel noted the appellant told him he gave the victim a "charley horse", although "[c]ollateral information" suggested a more serious incident. This was not a case of sexual violence;
d) The "stalking" incident on January 1, 2000, in which the appellant was arrested by officers responding to a complaint that a man was stalking a woman. The appellant denied the allegation he was stalking the woman. No conviction, other than for possession of a restricted weapon, resulted. Counsel advised this Court that Metzger J. ruled on a voir dire in the sexual assault trial in 2003 that the evidence of "stalking" was not admissible as similar fact evidence because the evidence of the identity of the stalker was too weak to permit the inference that it was the appellant who had followed the complainant.
[46] The trial judge's reliance on the January 2000 incident warrants particular scrutiny. The allegation was relied upon by the psychiatrists and interpreted by Dr. Tomita as marking a critical transition from hostile-reactive violence, which had characterized his previous sexual and non-sexual conduct, towards more "predatory violence". Dr. Tomita's analysis relied, however, on "[a]ccepting the victim's concerns and fears ... at their fullest" and finding that the incident was "an aborted attempt at attacking this woman", despite the appellant's specific denial.
[47] The trial judge noted that the police saw it as a "stalking" incident and that the psychiatrists relied upon the allegation as "part of the overall picture that led them to the conclusion that the pattern of violence ... was escalating" (at para. 46). He acknowledged that Metzger J. had found the evidence was too weak to infer that it was the appellant who had been following the complainant. Nonetheless, he went on to state (at para. 46):
That might somewhat diminish the conclusion that [the appellant] had become more predatory, but it does not invalidate it. A week before he was to be sentenced for the possession of the illegal switchblade, he committed the rape in circumstances similar to those involving the switchblade incident. [Emphasis added.]
[48] If the identity of the appellant as the individual following the complainant could not be proven beyond a reasonable doubt, no relevant inference could be drawn with respect to the appellant's pattern of sexual offending from the circumstances of this incident. All that may be considered are the established facts: the appellant was arrested, at night, carrying a prohibited weapon. By including this incident in his pattern analysis, the judge "upgraded the offence to fit the pattern": Neve at para. 156.
[49] When that incident is purged from the analysis, as it must be, what remains offers little to establish a pattern of predatory sexual behaviour prior to the July 2001 offence: the 1988 conviction for sexual assault; and the 1990 incident in which the appellant was initially charged for sexual assault, although the charges were dropped.
[50] The 1988 incident occurred when the appellant was 14 years old. No detail regarding the offence, proven or otherwise, was available. Absent such detail, it is difficult to see how a psychiatrist or a judge could assess the conduct to determine how it fits within any broader pattern of behaviour, beyond the bare fact of the conviction itself. In any event, there is no suggestion the offence was predatory.
[51] With respect to the 1990 incident, the trial judge simply stated that the appellant was charged and the charges were dropped. Dr. Bartel's report provides details of the alleged incident; however, neither the details nor the underlying offence were proven at a trial or at the dangerous offender hearing. It is unclear whether (and if so, on what basis) the trial judge found the allegation and its circumstances were proven beyond a reasonable doubt, or how it may have factored into his analysis.
[52] The Crown takes the position that it was not an error for the trial judge to consider circumstances not proven beyond a reasonable doubt in assessing the appellant's future risk of sexual offending, arguing that the purpose of the dangerous offender legislation, protection of the public, would be undermined if inferences could not be drawn based on the totality of the circumstances presented. With respect, this position ignores the law that where previous incidents that did not lead to convictions are considered, the circumstances must be proven beyond a reasonable doubt by evidence adduced at the hearing.
...
[58] In this case, however, no evidence was adduced to prove the otherwise unsubstantiated allegations of sexual violence. On the basis of the evidence adduced at the hearing, the trial judge could not have determined, for example, whether the appellant sexually assaulted his girlfriend in 1990, assaulted his spouse in 1998, or intended to attack the woman in 2000. All of these allegations informed the assessments of the expert witnesses, and were included in the trial judge's summary of the offender's history of conduct.
[59] This error is compounded when one considers that the only incident which shared the premeditated, predatory characteristics of the 2001 sexual assault was the alleged "stalking" incident of 2000, the circumstances of which have no probative value. The other prior sexual offences (both unproven and proven) were all found by Dr. Tomita to be part of the appellant's normal, well-established pattern of unplanned, hostile, reactive violence, which arises in situations where he is frustrated or angered.
[60] Ultimately, when all unproven, inadmissible conduct is expunged from the analysis, the pattern of sexual offending is reduced to only two incidents: the 1988 juvenile conviction, which was presented as a bare conviction with no context provided; and the 2001 conviction for violent, predatory sexual assault. Of those, only the 2001 incident is predatory in nature. Those incidents are not sufficient to satisfy the requisite pattern of behaviour and threat to the public, particularly the risk of violent sexual reoffending found to be determinative by the trial judge.
Unproven Allegations in Expert Evidence
[61] Psychiatric evidence plays a vital role in dangerous offender proceedings, furnishing the sentencing judge with "an expert opinion on the interpretation of past conduct and the likely future conduct of the offender based on his or her past behaviour": Neve at para. 182.
[62] Psychiatrists are entitled to use and rely upon a wide range of information in forming an expert opinion: Wilband v. The Queen, 1966 CanLII 3 (S.C.C.), [1967] S.C.R. 14; R. v. Kanester, [1968] 1 C.C.C. 351 (B.C.C.A.); R. v. Boyd 1983 CanLII 240 (BC C.A.), (1984), 8 C.C.C. (3d) 143 (B.C.C.A.); Neve at para. 187.
[63] It remains, however, the undivided responsibility of the sentencing judge to make all requisite findings of fact, including those regarding the alleged conduct upon which a psychiatrist bases his or her opinion. A psychiatric opinion is not evidence of the facts upon which it is based. If the court is not independently satisfied as to the truth of those facts on the basis of evidence presented at the hearing, then the value of the ultimate opinion is correspondingly diminished: R. v. Knight (1975), 27 C.C.C. (2d) 343 at 354, 356 (Ont. H.C.J). As explained by the Supreme Court of Canada in Wilband:
The value of a psychiatrist's opinion may be affected to the extent to which it may rest on second-hand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information but evidence of the opinion formed on the basis of that information. [Emphasis added.]
1 comment:
Thanks for your valuable contribution.Thanks for the kind words and the plug. Much appreciated.
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