SUPREME
COURT OF CANADA
Between:
Stephen
John Trochym
Appellant
and
Her
Majesty The Queen
Respondent
Coram:
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
and Rothstein JJ.
Reasons for
Judgment:
(paras. 1 to 84)
Concurring
Reasons:
(paras. 85 to 90)
Dissenting
Reasons:
(paras. 91 to 192)
|
Deschamps J. (McLachlin C.J. and Binnie, LeBel and Fish
JJ. concurring)
Charron J.
Bastarache J. (Abella and Rothstein JJ. concurring)
|
______________________________
R. v. Trochym, [2007] 1 S.C.R. 239, 2007 SCC 6
Stephen John Trochym Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Trochym
Neutral citation: 2007 SCC 6.
File No.: 30717.
2006: May 9; 2007: February 1.
Present: McLachlin C.J. and Bastarache, Binnie,
LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Admissibility — Post‑hypnosis
evidence — Whether post‑hypnosis evidence presumptively inadmissible for
evidentiary purposes — Whether such evidence satisfies test for
admissibility of novel scientific evidence.
Criminal law — Evidence — Admissibility — Similar
fact evidence — Accused convicted of second degree murder of girlfriend —
Around time of murder neighbour hearing man banging on door to victim’s
apartment and eventually hearing door open to admit him — Accused’s former
girlfriend testifying that following their breakup two years earlier accused
returned to her apartment and banged on door demanding entry but she did not
open door — Whether trial judge erred in admitting similar fact evidence —
Whether evidence of sufficient probative value to outweigh its prejudicial
effect.
Criminal law — Appeals — Powers of Court of Appeal
— No substantial wrong or miscarriage of justice — Accused convicted of second
degree murder of girlfriend — Whether trial judge erred in admitting post‑hypnosis
and similar fact evidence — If so, whether curative proviso applicable to
uphold conviction — Criminal Code, R.S.C. 1985, c. C‑46,
s. 686(1) (b)(iii).
T was charged with second degree murder. Forensic
evidence established that H, who was T’s girlfriend, had been killed in the
early hours of Wednesday, October 14, 1992, but that her body had been
repositioned some eight to twelve hours after the murder. Late Tuesday,
October 13, or in the early morning hours of Wednesday, October 14, a
neighbour, G, heard a man banging on the door to H’s apartment, demanding to be
let in. Although she did not see the man, G testified she eventually heard the
door open to admit him. Given the estimated time of death, it was likely that
the man who entered the apartment at that time was the killer. G also
testified at trial that she saw T leaving H’s apartment around 3:00 p.m. on
Wednesday afternoon. In G’s initial statements to police, she stated that she
had seen T on Thursday afternoon, not Wednesday. It was only after undergoing
hypnosis at the request of police investigators that G stated that she had seen
T on Wednesday afternoon. Several of H’s friends also testified at trial that
T was a jealous and obsessive partner who could not tolerate the thought of her
leaving him. A former girlfriend, O, testified that following T’s breakup with
her two years earlier, he returned to her apartment and banged on the door,
demanding to be allowed entry, but that she did not open the door. T, who
testified in his own defence, claimed that it was he who had ended the
relationship with H that night and that when he left H’s apartment at
12:30 a.m., she was still alive. He denied going back to her apartment on
Wednesday, but admitted returning to the apartment building on that day to
retrieve his car from the parking garage. To support his claim, T adduced
evidence that he was at work at the time G claimed to have seen him leaving H’s
apartment on Wednesday afternoon.
The trial judge admitted G’s post‑hypnosis
testimony and the similar fact evidence regarding T’s conduct upon the
termination of his prior relationship. Because of an agreement between
T’s counsel and the Crown, jurors were not informed that G had been hypnotized,
that she had initially told police she saw T on Thursday, nor did they hear
expert evidence on the reliability of post‑hypnosis testimony. T was
convicted and the Court of Appeal affirmed the conviction.
Held (Bastarache,
Abella and Rothstein JJ. dissenting): The appeal should be allowed, the
conviction set aside and a new trial ordered.
Per McLachlin C.J.
and Binnie, LeBel, Deschamps and Fish JJ.: The trial judge erred in
assuming that post‑hypnosis evidence is admissible where the guidelines
that were adopted in Clark are followed. This is an error, both because
post‑hypnosis evidence does not meet the requirements for the
admissibility of novel scientific evidence and because the guidelines
themselves are insufficient. Such evidence is presumptively inadmissible for
evidentiary purposes. While the guidelines play an important role in limiting
the possible exertion of influence during a hypnosis session, they are
problematic in that they are based on an assumption that the underlying science
of hypnosis is itself reliable in the context of judicial proceedings.
When the factors for evaluating the reliability of novel scientific evidence
are applied, it becomes evident that the technique of hypnosis and its impact
on human memory are not understood well enough for post‑hypnosis
testimony to be sufficiently reliable in a court of law. Although hypnosis has
been the subject of numerous studies, these studies are either inconclusive or
draw attention to the fact that hypnosis can, in certain circumstances, result
in the distortion of memory. The potential rate of error in the additional
information obtained through hypnosis when it is used for forensic purposes is
also troubling. At the present time, there is no way of knowing whether such
information will be accurate or inaccurate. Such uncertainty is unacceptable
in a court of law. Furthermore, while the guidelines aid significantly in
ensuring that the hypnotist and police make as few involuntary suggestions as
possible, they afford no protection against external sources of influence or
against the other problems associated with hypnosis, such as the creation of
hallucinated or false memories (confabulation), an increase in detail without
sufficient assurances that this new information will be accurate, and memory
hardening. Given these problems, the danger that the accused will be denied a
fair hearing is obvious. In the instant case, G’s two conversations with
police prior to the hypnosis session may have left her with a conscious or
subconscious belief regarding the right answer to the question whether she saw
T on Wednesday or Thursday afternoon, even if the police sought in all good
faith to avoid influencing her testimony. Unless a litigant reverses the
presumption of inadmissibility, post‑hypnosis testimony should not be
admitted as evidence. The inadmissibility of post‑hypnosis testimony
does not mean that hypnosis may not be used in other contexts. However,
investigators must be conscious of the potential consequences of hypnotizing a
witness. [13] [24] [27] [44] [55‑56] [61] [63]
While the trial judge should not admit evidence on
topics covered during the hypnosis session, he or she may consider it
appropriate to admit evidence on topics that were not touched on during the
session if he or she is satisfied that the detrimental effects are outweighed
by the probative value of the testimony. In such cases, the trial judge must
mention to the jury the potential frailties of such evidence and give proper
instructions concerning the effect of hypnosis on the weight of the testimony.
[64‑65]
The similar fact evidence was also inadmissible. The
fact that T, had, on one previous occasion, banged on a girlfriend’s door after
their relationship ended is not sufficiently probative to outweigh the
potential prejudicial effect of admitting that evidence for the purpose of
identifying him as the killer. This evidence did not meet the objective test
of “improbability of coincidence” for admitting similar fact evidence. A
single incident rarely evidences a pattern. Further, given the generic quality
of the acts, the admission of the ex‑girlfriend’s evidence was highly
problematic. Banging on a door cannot be characterized as “distinct” or
“unique” conduct that is somehow identifiable with a particular accused. Not
only did this evidence lack probative value on the issue of identity, but it
was also highly prejudicial, particularly in light of how it was used by the
Crown in its closing statements and by the trial judge in his instructions to
the jury. [74‑78] [83]
Finally, the curative proviso of s. 686(1) (b)(iii)
of the Criminal Code is not applicable to uphold the conviction. Once
the post‑hypnosis evidence, considered critical by the Crown and
characterized as significant by the judge, and the similar fact evidence are
excluded, the remaining evidence cannot be said to be “so overwhelming” as to
conclude that the trier of fact would inevitably have convicted. [83]
Per Charron
J.: Those parts of the testimony of a witness who has undergone
hypnosis that were not the subject‑matter of the hypnosis should be
admitted. In such cases, it would not be necessary for the proponent of the
evidence to show that the detrimental effects of the hypnosis are overcome by
the probative value of the testimony. The trial judge should also have the
discretion to admit post‑hypnosis testimony when the proposed testimony
is shown to be entirely based on the witness’s pre‑hypnosis memories.
While there may be lingering detrimental effects flowing from the hypnosis,
proof of the consistent pre‑hypnosis statement can constitute sufficient
rehabilitation of the witness to warrant admission of the testimony. Finally,
in all cases where the testimony of a witness who has undergone hypnosis is
admitted, it should be left to the discretion of the trial judge to determine
whether expert evidence is necessary to explain those effects and whether any
special instruction is called for to assist the jury in its assessment of the
evidence. [87‑89]
Per Bastarache, Abella
and Rothstein JJ. (dissenting): The post‑hypnosis evidence
should not be excluded. While a better evidentiary foundation in a future case
may perhaps demonstrate that it is time for Canadian courts to reconsider the
long‑standing admissibility rule for hypnotically refreshed memories,
that decision cannot be made in this case. It is only before this Court and
the Court of Appeal that T sought to challenge the long‑standing
admissibility rule for post‑hypnosis testimony. No direct expert
evidence was presented in order to properly challenge why the rule should no
longer be accepted. The sole evidence advanced before this Court on the
hypnosis issue was a handful of American cases in which the courts have opted
for categorical exclusion. This is not a sufficient evidentiary foundation
upon which this Court should overturn a long‑standing Canadian common law
rule. A complete exclusion of post‑hypnosis evidence in all cases is not
appropriate, as this could deprive the trier of fact of relevant, probative,
and critical evidence. This would also pose a problem regarding the
constitutional rights of an accused who has undergone hypnosis. The
admissibility of such evidence should always be determined on a case‑by‑case
basis. Here, the admission of the post‑hypnosis evidence was not
problematic. The trial judge held a voir dire to determine its
admissibility and was alerted to the potential dangers of such evidence.
Having found substantial compliance with the guidelines designed to assist a
hypnotist in improving the reliability of evidence obtained under hypnosis, as
well as having been shown through the Crown's cross‑examination that the
concerns raised by the defence experts were not live ones with respect to G's
evidence, the trial judge ruled the evidence admissible because he was
satisfied that it was sufficiently reliable to be put to the jury. The trial
judge saw his role as ensuring that the hypnotically enhanced memories met an
acceptable level of reliability, and not simply ensuring that the guidelines
were followed. The evidence was highly relevant to the Crown’s case and was
shown to be quite credible, and the trial judge made no error in admitting it.
[91] [137] [147‑148] [151] [160]
The approach to hypnotically refreshed evidence as
novel science raises concerns not only with respect to the views on the
admissibility of such evidence, but also with respect to the implications for
the admissibility of scientific evidence in future cases. First,
characterizing hypnosis as novel science ignores the fact that the technique
has been used in Canada for almost 30 years, and has been employed in
Canadian criminal investigations to assist in memory retrieval for a similar
length of time. While the use of forensic hypnosis has not been assessed under
the framework to determine admissibility of novel scientific evidence, this
does not mean that evidence derived from this technique has been admitted into
trials without sufficient scrutiny of its reliability. Very few Canadian
courts have admitted hypnosis evidence without a voir dire as to its
admissibility. Second, the test for assessing the reliability of scientific
evidence is not new law requiring that scientific methods, previously accepted
as legitimate by our courts, must now be resubmitted for scrutiny. Rather, the
test emphasizes the need for courts to give special scrutiny to novel science
or the new application of a recognized science, through a case‑by‑case
evaluation, in light of the changing nature of our scientific knowledge. The
test was not intended to set down a rigid formula where the results must be
proved beyond a reasonable doubt before scientific evidence can be admitted.
The factors adopted were designed to be flexible and non‑exclusive.
Third, the test was not meant to require a standard of total consensus by
members of the scientific community. Total unanimity, which is a standard akin
to the “general acceptance” test recently rejected by this Court, is impossible
to obtain and therefore completely unrealistic to expect. To require such a
high standard of reliability will result in the exclusion of far too much
relevant and probative evidence. Finally, it is especially problematic to
adopt a general exclusionary rule towards hypnosis evidence by relying almost
exclusively on the position of experts discussed in American cases cited. To
rely on expert evidence heard in other cases deprives a party of the right to
present contrary evidence or to cross‑examine the experts who maintain
such a position. A court should never take judicial notice of expert
evidence. [115] [131‑132] [134] [136] [138‑144]
Concerns raised regarding hypnosis are not new or
insurmountable and are taken into account by trial judges in virtually every voir
dire held to determine the admissibility of hypnotically refreshed
memories. It would be unreasonable to expect hypnotically refreshed
memories to be more reliable than regular memories, which, like hypnotically
refreshed memories, are not immune to external sources of suggestion. There is
no guarantee with respect to the accuracy of such ordinary memories either.
Judges know these risks, yet they do not deem such evidence inadmissible.
These sorts of potential frailties with memory, whether ordinary or
hypnotically refreshed, are those that juries are quite capable of weighing.
The problem with regard to cross‑examining a witness whose memory has
been refreshed through hypnosis — the impossibility of challenging the veracity
of his or her memory — also arises in the context of a witness whose
evidence is presented through past recollections recorded. This has not
provoked courts to categorically exclude such evidence. Courts have been
satisfied by the fact that witnesses can be cross‑examined about how
their memories were recalled, the circumstances surrounding the recall, and
prior inconsistent statements. There is no reason why the situation
should be any different for hypnotically refreshed memories. Appellate
courts must have faith in the intelligence and common sense of juries and in
the ability of trial judges to properly charge them. In this case, the only
aspect of G’s testimony refreshed through hypnosis concerned the day the
sighting occurred. Whether the sighting occurred on one day or the next does
not change the significance of the evidence. To exclude all of G’s evidence
when only this point was clarified through hypnosis is an inflexible and
disproportionate solution. [114] [149] [152] [154] [156]
While juries should generally be informed of efforts
to enhance a witness’s memory, there is no absolute rule on this point and
agreements between counsel not to put the issue of hypnosis to the jury should
be respected where no prejudice is shown to have been caused to a party. [159]
The trial judge erred in admitting O’s similar fact
evidence adduced on the issue of identity. There is nothing particularly
distinctive about banging or knocking on a door to warrant the characterization
as a “trademark”. As well, the number of these incidents renders them insufficient
to support such a determination. [185] [187]
While the admission of the similar fact evidence was
an error, the evidence against T was overwhelming, and the curative proviso of
s. 686(1) (b)(iii) of the Criminal Code should be applied to
uphold the conviction. Absent the similar fact accepted in evidence, there was
still sufficient evidence to support the inference that T was the person
banging on the victim’s door the night of her death. There is no reasonable
possibility that the verdict would have been different without the error. [189‑191]
Cases Cited
By Deschamps J.
Applied: R. v. J.‑L.J., [2000] 2 S.C.R. 600, 2000 SCC 51; not
followed: R. v. Clark (1984), 13 C.C.C. (3d) 117;
referred to: United States v. Burns, [2001] 1 S.C.R. 283,
2001 SCC 7; State v. Hurd, 414 A.2d 291 (1980); People
v. McDowell, 427 N.Y.S.2d 181 (1980); R. v. Bernier,
[2004] Q.J. No. 11567 (QL); R. v. Sanchez‑Flores, [1993] O.J.
No. 4161 (QL); R. v. O’Brien (1992), 117 N.S.R. (2d) 48; R.
v. Savoy, [1997] B.C.J. No. 2747 (QL); R. v. Taillefer (1995),
100 C.C.C. (3d) 1; R. v. Mohan, [1994] 2 S.C.R. 9; Burral
v. State, 724 A.2d 65 (1999); State v. Moore,
902 A.2d 1212 (2006); R. v. Terceira, [1999]
3 S.C.R. 866; R. v. Hibbert, [2002] 2 S.C.R. 445,
2002 SCC 39; Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993); R. v. McFelin, [1985]
2 N.Z.L.R. 750; R. v. G., [1996] 1 N.Z.L.R. 615; R.
v. Haywood (1994), 73 A. Crim. R. 41; Harding v. State,
246 A.2d 302 (1968); People v. Shirley, 723 P.2d 1354
(1982); Rock v. Arkansas, 483 U.S. 44 (1987); R. v.
Seaboyer, [1991] 2 S.C.R. 577; R. v. Baltovich (2004),
73 O.R. (3d) 481; R. v. Béland, [1987] 2 S.C.R. 398; R.
v. Arp, [1998] 3 S.C.R. 339; R. v. Handy, [2002]
2 S.C.R. 908, 2002 SCC 56; R. v. B. (C.R.), [1990]
1 S.C.R. 717; Boucher v. The Queen, [1955] S.C.R. 16; R.
v. Proctor (1992), 11 C.R. (4th) 200; R. v. Khan, [2001]
3 S.C.R. 823, 2001 SCC 86; R. v. S. (P.L.),
[1991] 1 S.C.R. 909.
By Bastarache J. (dissenting)
R. v. White, [1998]
2 S.C.R. 72; R. v. L. (D.O.), [1993] 4 S.C.R. 419; Lavallee,
Rackel & Heintz v. Canada (Attorney General), [2002]
3 S.C.R. 209, 2002 SCC 61; H.L. v. Canada (Attorney
General), [2005] 1 S.C.R. 401, 2005 SCC 25; R. v.
Corbett, [1988] 1 S.C.R. 670; R. v. Swain, [1991]
1 S.C.R. 933; R. v. Clark (1984), 13 C.C.C.
(3d) 117; R. v. J.‑L.J., [2000] 2 S.C.R. 600, 2000 SCC
51; R. v. Pitt, [1968] 3 C.C.C. 342; R. v. K., [1979]
5 W.W.R. 105; Horvath v. The Queen, [1979]
2 S.C.R. 376; State v. Brown, 337 N.W.2d 138 (1983);
State v. Jorgensen, 492 P.2d 312 (1971); State v. Glebock,
616 S.W.2d 897 (1981); Prime v. State, 767 P.2d 149
(1989); R. v. Zubot (1981), 47 A.R. 389; R. v. Hart,
[1990] O.J. No. 2678 (QL); R. v. Sanchez‑Flores, [1993] O.J.
No. 4161 (QL); R. v. Gauld, [1994] O.J. No. 1477 (QL); R.
v. Taillefer (1995), 100 C.C.C. (3d) 1; R. v. Savoy,
[1997] B.C.J. No. 2747 (QL); R. v. Terceira (1998), 38 O.R.
(3d) 175, aff’d [1999] 3 S.C.R. 866; R. v. B. (A.) (2004),
27 C.R. (6th) 283; R. v. Baltovich (2004), 73 O.R. (3d)
481; R. v. Medvedew (1978), 43 C.C.C. (2d) 434; R. v.
Nielsen (1984), 16 C.C.C. (3d) 39; R. v. Melaragni (1992),
73 C.C.C. (3d) 348; R. v. Johnston (1992), 69 C.C.C.
(3d) 395; R. v. Dieffenbaugh (1993), 80 C.C.C. (3d) 97; R.
v. J.E.T., [1994] O.J. No. 3067 (QL); R. v. McIntosh (1997),
117 C.C.C. (3d) 385; R. v. Mohan, [1994] 2 S.C.R. 9;
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);
Frye v. United States, 293 F. 1013 (1923); State v. Moore,
852 A.2d 1073 (2004); R. v. Find, [2001]
1 S.C.R. 863, 2001 SCC 32; R. v. D.D., [2000]
2 S.C.R. 275, 2000 SCC 43; R. v. Sappier, [2006] 2
S.C.R. 686, 2006 SCC 54; R. v. Fliss, [2002]
1 S.C.R. 535, 2002 SCC 16; R. v. Meddoui (1990),
61 C.C.C. (3d) 345; R. v. Holmes (1989),
99 A.R. 106; Rock v. Arkansas, 483 U.S. 44 (1987); R.
v. B. (S.C.) (1997), 36 O.R. (3d) 516; R. v. Peavoy
(1997), 117 C.C.C. (3d) 226; R. v. Ménard, [1998]
2 S.C.R. 109; R. v. Arcangioli, [1994] 1 S.C.R. 129;
R. v. Levert (2001), 159 C.C.C. (3d) 71; R. v. Bennett (2003),
179 C.C.C. (3d) 244; R. v. Stark (2004), 190 C.C.C.
(3d) 496; R. v. Turcotte, [2005] 2 S.C.R. 519,
2005 SCC 50; Rothman v. The Queen, [1981]
1 S.C.R. 640, R. v. Hebert, [1990] 2 S.C.R. 151; R.
v. Hibbert, [2002] 2 S.C.R. 445, 2002 SCC 39; R. v.
Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5; R. v.
Seaboyer, [1991] 2 S.C.R. 577; R. v. R. (A.J.) (1994),
94 C.C.C. (3d) 168; Markadonis v. The King, [1935]
S.C.R. 657; R. v. Yakeleya (1985), 46 C.R. (3d) 282; R.
v. W.J.M. (1995), 82 O.A.C. 130; R. v. Ellard (2003),
172 C.C.C. (3d) 28, 2003 BCCA 68; R. v. White (1999),
132 C.C.C. (3d) 373; R. v. Rose, [1998] 3 S.C.R. 262; R.
v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Arp, [1998]
3 S.C.R. 339; R. v. Handy, [2002] 2 S.C.R. 908,
2002 SCC 56; R. v. Bevan, [1993] 2 S.C.R. 599; R.
v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R.
v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86.
Statutes and Regulations Cited
Canadian
Charter of Rights and Freedoms, s. 7 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
Police and Criminal Evidence
Act 1984 (U.K.), 1984, c. 60, s. 78.
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APPEAL from a judgment of the Ontario Court of Appeal
(Catzman, Weiler and MacPherson JJ.A.) (2004), 71 O.R. (3d) 611,
188 O.A.C. 330, 186 C.C.C. (3d) 417, 24 C.R.
(6th) 388, [2004] O.J. No. 2850 (QL), affirming the accused’s
conviction. Appeal allowed, Bastarache, Abella and Rothstein JJ.
dissenting.
James Lockyer and C. Anik Morrow,
for the appellant.
Kenneth L. Campbell and Howard Leibovich, for the respondent.
The judgment of McLachlin C.J. and Binnie, LeBel,
Deschamps and Fish JJ. was delivered by
1
Deschamps J. — In recent
years, a number of public inquiries have highlighted the importance of
safeguarding the criminal justice system — and protecting the accused who are
tried under it — from the possibility of wrongful conviction. As this Court has
previously noted, “[t]he names of Marshall, Milgaard, Morin, Sophonow and
Parsons signal prudence and caution in a murder case”: United States v.
Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 1. In the case at bar, we
consider once again the need to carefully scrutinize evidence presented against
an accused for reliability and prejudicial effect, and to ensure the basic
fairness of the criminal process. More specifically, the decisions at trial to
admit post-hypnosis evidence and similar fact evidence in this case constitute
errors of law that are neither harmless nor negligible. This is not a case
where the remaining evidence is so overwhelming that I can conclude that a
conviction would inevitably have been entered by the trier of fact had the
evidence in issue not been adduced. I would set aside the conviction and order
a new trial.
2
This case raises a number of legal issues, each of which arises out of
an intricate factual context. I will therefore begin with a general overview of
the facts and of the decisions of the courts below, and will go into greater
detail on the two grounds that are, in my view, determinative of the outcome of
this appeal.
I. Facts
3
On July 6, 1995, the appellant, Stephen Trochym, was convicted of second
degree murder by a judge sitting with a jury. The deceased, Donna Hunter, was
the appellant’s girlfriend of almost one year.
4
Ms. Hunter was last seen alive late on Tuesday, October 13, 1992, or in
the early hours of Wednesday, October 14. The Crown’s theory at trial was that
the appellant had killed Ms. Hunter in a fit of rage after she had attempted to
end their troubled relationship. Several of Ms. Hunter’s friends testified that
the appellant was a jealous and obsessive partner who could not tolerate the
thought of her leaving him. However, the appellant, who testified in his own
defence, claimed that it was he who had ended the relationship that night and
that when he left Ms. Hunter’s apartment at 12:30 a.m., she was still alive.
5
Late on Tuesday, October 13, or in the early morning hours of Wednesday,
October 14, Gity Haghnegahdar, a neighbour of Ms. Hunter’s, heard a man banging
on the door of the deceased’s apartment, demanding to be let in. Although she
did not see the man, Ms. Haghnegahdar heard the door eventually open to admit
him. Given the estimated time of death, it was likely that the man who entered
the apartment at that time was Ms. Hunter’s killer. Establishing that it was
the appellant knocking at the door was a key aspect of the Crown’s case. To
this end, the Crown was permitted to adduce evidence that following Mr.
Trochym’s breakup with a previous girlfriend (Darlene Oliphant) two years
earlier, he had returned to her apartment and banged on the door, demanding to
be let in.
6
The neighbour, Ms. Haghnegahdar, also testified at trial that she had
seen the appellant leaving Ms. Hunter’s apartment around 3:00 p.m. on Wednesday
afternoon. This testimony was considered critical by the Crown and was
characterized as significant by the trial judge. The Crown sought to use it to
establish that Mr. Trochym had returned to Ms. Hunter’s apartment in the
afternoon after the murder to “stage the scene” of the crime. By removing some
personal effects and moving the body to make it appear as though the murder had
been sexually motivated, the Crown argued, the appellant sought to distract
attention from himself. The Crown’s theory was supported by forensic evidence
that established that the deceased had been killed in the early hours of
Wednesday morning, but that her body had been repositioned some eight to twelve
hours after the murder.
7
A key fact on appeal, however, was Ms. Haghnegahdar’s statement, when
first interviewed by the police, that she had seen the appellant on Thursday
afternoon, not Wednesday. It was only after undergoing hypnosis at the request
of police investigators that Ms. Haghnegahdar stated that she had seen the
accused on Wednesday afternoon.
8
The appellant denied having returned to Ms. Hunter’s apartment, but
admitted that he had returned to the apartment building to retrieve his car
from the parking garage on Wednesday. To support his claim, Mr. Trochym adduced
evidence that he was at work at the time the witness claimed to have seen him
leaving the deceased’s apartment on Wednesday afternoon. The Crown argued that
the appellant’s evidence on this point was concocted and further argued that
the appellant’s demeanour in the days subsequent to the discovery of the
deceased’s body was evidence of consciousness of guilt. When asked to attend a
second meeting with the police, the appellant had made excuses not to attend,
claiming that he was otherwise occupied with a darts game and a haircut
appointment. Mr. Trochym testified at trial that he had been attempting to
“stall” until he could consult with counsel, but the Crown suggested to the
jury that the appellant’s post-offence conduct established that the appellant
had lied when he claimed he wanted to help officers with their investigation,
and that this was evidence of consciousness of guilt, because the appellant was
evading police. Although this evidence was admitted, the trial judge instructed
the jury that it “would be completely wrong to draw any adverse inference
against the [appellant] from his desire to stall for time because he wanted to
consult with a lawyer” (A.R., at p. 3736).
9
Following a 14-week trial, Mr. Trochym was convicted of second degree
murder on July 6, 1995. His appeal to the Court of Appeal for Ontario was
dismissed on July 5, 2004 ((2004), 71 O.R. (3d) 611). He applied for and was
granted leave to appeal to this Court.
II. Decisions Below
10
The trial judge admitted Ms. Haghnegahdar’s post-hypnosis testimony and
also admitted the “similar fact” evidence of Darlene Oliphant regarding the
appellant’s conduct upon the termination of their relationship. The Ontario
Court of Appeal declined to find that the trial judge had erred in allowing
this evidence, and dismissed the appeal. MacPherson J.A., writing for the
court, also rejected a number of other grounds of appeal that have been raised
again before this Court. More specifically, he held that the trial judge had
not erred in dealing with the appellant’s post-offence conduct, or with the
Crown’s assertion that the appellant had concocted evidence to show that he
could not be the person who had staged the crime scene. Nor, MacPherson J.A.
held, had the Crown’s cross-examination of the appellant rendered the trial
unfair.
11
For the purposes of this appeal, it will not be necessary to deal with
all of the grounds of appeal. As I mentioned earlier, two issues, namely those
concerning the post-hypnosis evidence and the purported similar fact evidence,
are determinative. I will elaborate further on the reasoning of the Ontario
Superior Court of Justice and the Ontario Court of Appeal in relation to those
grounds of appeal.
III. Positions of the Parties in This Appeal
12
Mr. Trochym requests that his conviction for second degree murder be set
aside and a new trial ordered. On the hypnosis issue, he advocates the
automatic exclusion of such evidence. He also requests the Court to exclude the
similar fact evidence. The Crown submits that none of the grounds of appeal
warrant intervention and that the appeal should be dismissed. In the event that
the trial judge erred, the Crown argues, this Court should apply the curative
proviso of s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985,
c. C-46 . The question before this Court, therefore, is whether the trial judge
erred in conducting the appellant’s trial and, if so, whether the evidence is
so overwhelming that the error did not cause any “substantial wrong or
miscarriage of justice”.
IV. Analysis
A. Post-Hypnosis Evidence
13
I will begin by presenting a detailed summary of the facts relating to
the use of hypnosis in this case and review the findings of the courts below. I
will then determine whether this evidence is admissible in accordance with the
test for novel scientific evidence set out in R. v. J.-L.J., [2000] 2
S.C.R. 600, 2000 SCC 51. In view of my conclusion that post-hypnosis evidence
is presumptively inadmissible for evidentiary purposes, I will then conclude by
discussing whether the technique of hypnosis may be used in a more limited way.
(1) Summary of Facts on the Issue of Hypnosis
14
Police first interviewed Gity Haghnegahdar about the murder of Donna
Hunter on Saturday, October 17, 1992, four days after the murder. At that time,
Ms. Haghnegahdar told police officers that she had seen Mr. Trochym come
out of Ms. Hunter’s apartment on the afternoon of Thursday, October 15.
When police investigators interviewed the appellant, he claimed that the last
time he had been in the apartment was in the early morning hours of Wednesday,
October 14, but that he had returned to the building on Wednesday afternoon to
retrieve his car. The building superintendent confirmed that he had spoken with
the appellant on Wednesday afternoon and had let him into the underground
garage. Another neighbour, Phyllis Humenick, also stated that she had seen Mr.
Trochym in the building on Wednesday afternoon. The evidence given by
Ms. Humenick at the preliminary hearing was read in at trial; she was
unable to attend because of a mental health disorder.
15
Around this time, the police also learned from the autopsy that Ms.
Hunter’s body had been moved some eight to twelve hours after her death.
16
Police investigators determined that Ms. Haghnegahdar’s information was
very significant. If she was correct, then the appellant had lied to the police
about not returning to the apartment. If she had mistaken the day, then Mr.
Trochym may have been the one who moved the body. The police interviewed
Ms. Haghnegahdar again on October 18. In this interview, the following
exchange occurred about the timing of the sighting:
CLARKE: Now what makes you
remember that this is Thursday?
HAGHNEGAHDAR: Because Friday ah I – I saw them a
many times to ah together.
CLARKE: Yes.
HAGHNEGAHDAR: Because Friday my school friend
came to my apartment, we had a coffee and she left.
CLARKE: Yes.
.
. .
HAGHNEGAHDAR: That’s why I say it’s Thursday, I
hope it wasn’t Wednesday because ah I think it was Thursday, yeah.
CLARKE: That’s – that’s what
really I’m – I’m asking ah why you remember it’s Thursday ah you’re definite it
wasn’t Friday?
HAGHNEGAHDAR: Oh.
CLARKE: What – what –
HAGHNEGAHDAR: (Inaudible).
CLARKE: – are the possibilities
that it was Wednesday, is there any possibility, can you remember what you did
on Wednesday?
HAGHNEGAHDAR: Wednesday? I don’t remember
Wednesday very well but I remember Friday, I remember a little bit of Thursday.
CLARKE: Okay.
HAGHNEGAHDAR: I don’t remember Wednesday because
I don’t remember what did – what did I do at Wednesday. Often I came home after
school. Sometimes I go to the library.
CLARKE: Yeah.
HAGHNEGAHDAR: And most of time ah the Thursday I
came straight home and I – I came home to my apartment (inaudible).
.
. .
HAGHNEGAHDAR: I think [it] was Thursday, yes.
(A.R., at pp. 3946-48)
Following this
interview, the police asked Ms. Haghnegahdar on November 4 to undergo hypnosis
in order to improve her memory, and she agreed to do so. She was not given any
further information by the police.
17
Ms. Haghnegahdar was hypnotized by Dr. George Matheson on November 8,
1992. At that time, Dr. Matheson was a registered psychologist with over 20
years experience who had previously interviewed witnesses both for the Crown
and for defence counsel.
18
While under hypnosis, Ms. Haghnegahdar said that she remembered seeing
the appellant exit the deceased’s apartment at around 3:00 p.m., after she came
home from school. She related this sighting to the fact that her daughter had
had a piano lesson, and that the piano lessons were on Wednesdays. During a post-hypnosis
interview with the police, Ms. Haghnegahdar adopted these memories, stating
that she must have seen the appellant on Wednesday afternoon. Ms. Haghnegahdar
also provided further detail about the jacket the accused was wearing when she
saw him, saying that it was a leather jacket or a windbreaker. In the hypnosis
session, the hypnotist had asked the following question about the jacket the
man was wearing: “Is it a sports jacket or windbreaker [or] what?”
19
At trial, Ms. Haghnegahdar testified that she had seen the appellant
leaving Ms. Hunter’s apartment at around 3:00 p.m. on Wednesday afternoon.
The jurors were not informed that Ms. Haghnegahdar had been hypnotized, that
she had initially told police she saw the appellant on Thursday, nor did they
hear expert evidence on the reliability of post-hypnosis testimony.
(2) Decisions of the Courts Below on the
Issue of Post-Hypnosis Testimony
20
Mr. Trochym objected to the admissibility of Ms. Haghnegahdar’s
post-hypnosis “memories”. On April 5, 1995, after a lengthy voir dire
at which the evidence of three expert witnesses was considered, the trial judge
held that the post-hypnosis evidence was admissible and that it would be for
the jury to determine the weight it was to be given. In particular, the trial
judge found that the hypnotist, Dr. Matheson, had substantially complied with
the guidelines set out by the Alberta Court of Queen’s Bench in R. v. Clark (1984),
13 C.C.C. (3d) 117, which had been adopted in a number of Ontario decisions. In
summarizing the expert testimony, the trial judge noted that hypnosis may
increase the number of details recalled, but that the “recovered memories” may
or may not be accurate (A.R., at p. 30). Rather than excluding the
post-hypnosis evidence, the trial judge observed, where the evidence sought to
be introduced is from a witness other than the accused, “it is necessary for
the Court to embark upon the process of weighing the probative value of the
evidence against the potential for prejudice, but always with the presumption
being in favour of admissibility subject to weight” (A.R., at p. 25).
21
Following this ruling, and in view of the evidence that the jury might
have an unjustified faith in post-hypnosis memory, counsel for Mr. Trochym
entered into an agreement with the Crown that the defence would not
cross-examine Ms. Haghnegahdar on her previous inconsistent statements to
police (i.e. that she had seen the appellant on Thursday) if the Crown in turn
refrained from mentioning that Ms. Haghnegahdar had undergone hypnosis. The
trial judge accepted this agreement and the jurors were thus unaware that Ms.
Haghnegahdar had been hypnotized, that her recollection had changed and that
there had been some disagreement among the expert witnesses regarding the
reliability of post-hypnosis memories.
22
Writing for the Ontario Court of Appeal, MacPherson J.A. declined to
categorically exclude all post-hypnosis evidence. He concluded that
post-hypnosis evidence ought to be dealt with on a case-by-case basis and held
that, in the instant case, the trial judge had properly exercised his
discretion to admit the evidence.
23
The appellant further argued in the Court of Appeal that the trial judge
had erred in giving effect to the agreement between the parties that the
defence would not cross-examine Ms. Haghnegahdar on her prior inconsistent
statements if the Crown refrained from disclosing to the jury the fact that she
had been hypnotized. MacPherson J.A. disagreed, holding that the agreement was
a tactical decision and that the appellant could not now take issue with it.
(3) Analysis on the Issue of Post-Hypnosis
Testimony
24
This case represents the first opportunity this Court has had to
consider the admissibility of post-hypnosis evidence. The Court’s framework for
assessing novel science ensures that only scientific opinions based on a
reliable foundation are put to the trier of fact (J.-L.J., at para. 33),
and the same principle applies to scientific techniques. Just as financial
results contained in a report must be found to be prepared on the basis of a
technique that has a reliable scientific foundation, post-hypnosis memories
must be demonstrated to be sufficiently reliable before being put to the trier
of fact. The “gatekeeper function” of the courts referred to in J.-L.J.
(at para. 1) is thus as important when facts extracted through the use of a
scientific technique are put to the jury as when an opinion is put to the jury
through an expert who bases his or her conclusions on a scientific technique.
As I will explain, the trial judge’s error was to assume that post-hypnosis
evidence is admissible provided that the Clark guidelines are followed.
This is an error, both because the Clark guidelines themselves are
insufficient and because post-hypnosis evidence does not meet the requirements
of J.-L.J. I will consider both these points in turn.
(a) Problems With the Clark Guidelines
25
In the case at bar, the trial judge assessed the reliability of the
post-hypnosis evidence based on the factors set out in Clark. In that
case, the accused was charged with two counts of first degree murder. He had no
memory of the events until he was hypnotized. While there was no dispute that
the accused had committed the acts with which he was charged, the issue at
trial was his intent and mental capacity at the relevant time. Wachowich J.
noted concerns regarding the use of hypnosis, but concluded that it would only
be in an “extraordinary case” that a court would preclude a witness from
testifying after having his or her memory stimulated by hypnosis (p. 123).
However, he held that “the content of the hypnosis session is a proper subject
for inquiry at the trial because it bears heavily on the credibility of the
witness and the weight to be given his evidence” (p. 124). To this end,
Wachowich J. set out a number of principles that should guide a hypnotist
during a hypnosis session. These guidelines, he observed, would improve the
reliability of evidence obtained under hypnosis.
26
Drawn from the American cases of State v. Hurd, 414 A.2d 291
(N.J. Sup. Ct. 1980), and People v. McDowell, 427 N.Y.S.2d 181 (Sup. Ct.
1980), the Clark guidelines are as follows (Clark, at p. 125):
(1) The person conducting the hypnotic interview
should be a qualified professional . . . .
(2) The hypnotist must be independent of the party
who requires his services. . . .
(3) The hypnotist should be given only the minimum
amount of information necessary to conduct the interview. . . .
(4) The entire interview between the hypnotist and
the potential witness should be recorded preferably on video tape . . . .
(5) The interview should be conducted with only the
hypnotist and the subject present. . . .
(6) Prior to the actual hypnosis of the subject,
the hypnotist should conduct a lengthy interview of the subject to determine
his medical history including information about the present or past use of
drugs. . . .
(7) Prior to hypnosis, the hypnotist should elicit
from the subject a detailed description of the facts surrounding the subject‑matter
of the hypnosis session, as the subject is able to recall them at that point in
time.
(8) The hypnotist should pay careful attention to
the form and manner of his questions, the choice of his words and the avoidance
of body language so that he is not either intentionally or inadvertently
providing the subject with information.
The Clark test
has been adopted by a number of courts in Canada (see, e.g., R. v. Bernier,
[2004] Q.J. No. 11567 (QL) (Sup. Ct.); R. v. Sanchez-Flores, [1993] O.J.
No. 4161 (QL) (Gen. Div.); R. v. O’Brien (1992), 117 N.S.R. (2d) 48
(S.C. App. Div.); and R. v. Savoy, [1997] B.C.J. No. 2747 (QL) (S.C.).
27
The guidelines are intended to limit the possibility of a hypnotist
influencing, inadvertently or not, the persons being hypnotized, thereby
tainting the witness’s evidence. While they play an important role in limiting
the possible exertion of influence during a hypnosis session, the guidelines
are problematic in that they are based on an assumption that the underlying
science of hypnosis is itself reliable in the context of judicial proceedings.
Reliability is an essential component of admissibility. Whereas the degree of
reliability required by courts may vary depending on the circumstances,
evidence that is not sufficiently reliable is likely to undermine the
fundamental fairness of the criminal process.
28
The probative value of post-hypnosis memories cannot be assessed without
also inquiring into the reliability of the scientific technique that enabled
them to arise. This concern was highlighted in R. v. Taillefer (1995),
100 C.C.C. (3d) 1, in which the Quebec Court of Appeal held that the trial
judge had erred in not allowing the defence to challenge the reliability of
hypnosis on voir dire. Proulx J.A., writing for the court, stated the
following at p. 22:
[translation] [H]ypnosis
employed as a technique to stimulate memory even today raises serious questions
about its reliability [and] the appellants’ objections as to the reliability of
the method and the qualifications of the police officer offered as an expert
should not have been dismissed, from the very outset, solely on the ground that
this method has been accepted by some Canadian courts.
Although
Proulx J.A. declined to make a finding on the reliability of hypnosis in the
judicial context because insufficient evidence had been submitted at trial, he
noted that as a result of R. v. Mohan, [1994] 2 S.C.R. 9, [translation] “[the] admissibility or .
. . validity of scientific evidence based on a theory which has not yet been
widely accepted, or the accuracy of which has not been determined, is now
subject to a threshold test of reliability” (Taillefer, at p. 21).
29
It should be noted that Hurd, which formed the basis for the Clark
guidelines, has come to be revisited, in part as a result of the views
expressed since then by Dr. Martin Orne, whose expert testimony had played a
central role in that case. Dr. Orne subsequently warned that “hypnotically
induced memories should never be permitted to form the basis for
testimony by witnesses or victims in a court of law”: Burral v. State,
724 A.2d 65 (Md. 1999), at p. 81 (emphasis in original). He was of the view
that “there is a considerable risk that the inherent unreliability of
information confidently provided by a hypnotized witness may actually be
detrimental to the truth-seeking process” (State v. Moore, 902 A.2d 1212
(N.J. 2006), at p. 1228). After reconsidering the inherent unreliability of
post-hypnosis testimony, New Jersey joined the 26 states in the United States
that limit the admissibility of post-hypnosis testimony. In New Jersey,
post-hypnosis testimony is now generally inadmissible in a criminal trial (Moore,
at p. 1213).
30
Since the Clark guidelines are derived from Dr. Orne’s testimony
in Hurd, it would be disturbing for this Court to blind itself to the
subsequent developments in the American cases. With the basic reliability of
post-hypnosis evidence increasingly in question, judicial approaches to such
evidence have tended to shift from an assessment of the weight to be
attributed to post-hypnosis testimony to whether it should even be admissible.
(b) The Court’s Approach to Evidence
Involving Science
31
Not all scientific evidence, or evidence that results from the use of a
scientific technique, must be screened before being introduced into evidence.
In some cases, the science in question is so well established that judges can
rely on the fact that the admissibility of evidence based on it has been
clearly recognized by the courts in the past. Other cases may not be so clear.
Like the legal community, the scientific community continues to challenge and
improve upon its existing base of knowledge. As a result, the admissibility of
scientific evidence is not frozen in time.
32
While some forms of scientific evidence become more reliable over time,
others may become less so as further studies reveal concerns. Thus, a
technique that was once admissible may subsequently be found to be
inadmissible. An example of the first situation, where, upon further
refinement and study, a scientific technique becomes sufficiently reliable to
be used in criminal trials, is DNA matching evidence, which this Court
recognized in R. v. Terceira, [1999] 3 S.C.R. 866. An example of the
second situation, where a technique that has been employed for some time comes
to be questioned, is so-called “dock”, or in-court, identification evidence.
In R. v. Hibbert, [2002] 2 S.C.R. 445, 2002 SCC 39, at para. 50, Arbour
J., writing for the majority, stated that despite its long-standing use, dock
identification is almost totally unreliable. Therefore, even if it has
received judicial recognition in the past, a technique or science whose underlying
assumptions are challenged should not be admitted in evidence without first
confirming the validity of those assumptions.
33
The concerns raised in Taillefer and Moore are thus
relevant to the instant case and coincide with a more general issue recently
considered by this Court. Since Clark, this Court has had the
opportunity to consider the admission of novel science in courtrooms. In J.-L.J.,
it built on Mohan to develop the test governing the admissibility of
such evidence. Under this test, a party wishing to rely on novel scientific
evidence must first establish that the underlying science is sufficiently
reliable to be admitted in a court of law. This is particularly important
where, as here, an accused person’s liberty is at stake. Even though the use of
expert testimony was not in itself at issue in the present case — this appeal
concerns the application of a scientific technique to the testimony of a lay
witness — the threshold reliability of the technique, and its impact on the
testimony, remains crucial to the fairness of the trial.
34
The central concern in Mohan was that scientific evidence be
carefully scrutinized because, in Sopinka J.’s words, “[d]ressed up in
scientific language which the jury does not easily understand and submitted
through a witness of impressive antecedents, this evidence is apt to be
accepted by the jury as being virtually infallible and as having more weight
than it deserves” (p. 21). The situation in the case at bar is similar in that
the evidence reveals a risk that post-hypnotic memories may be given more
weight than they should. In J.-L.J., the Court went a step further,
establishing a framework for assessing the reliability of novel science and,
consequently, its admissibility in court.
35
In the instant case, the appellant questioned the admissibility of the
post-hypnosis testimony, and several experts gave evidence of differences of
opinion on the use of hypnosis in the judicial context. The technique therefore
needs to be assessed based on the existing legal standards for criminal trials.
36
In J.-L.J., Binnie J. explained that Canadian courts require a
“reliable foundation” for novel science to be admissible as evidence at trial.
Drawing on the American case of Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), he observed that reliability can be evaluated on the basis
of four factors (J.-L.J., at para. 33):
(1) whether the . . . technique can be and has
been tested[;]
.
. .
(2) whether the . . . technique has been
subjected to peer review and publication[;]
.
. .
(3) the known or potential rate of error . . .;
and,
(4) whether the theory or technique used has
been generally accepted . . . .
37
These factors can be used to determine the reliability of post-hypnosis
evidence. J.-L.J. is particularly helpful for the purpose of drawing a
distinction between the efficacy of hypnosis as a therapeutic tool and its
utility as a forensic tool. As Binnie J. observed, techniques that are
sufficiently reliable for therapeutic purposes are not necessarily sufficiently
reliable for use as evidence in a court of law where an accused’s liberty is at
stake (para. 35). Ironically, it appears that one of the very characteristics
that make the use of hypnosis reliable in a therapeutic context — the fact that
both mental and physical perceptions are highly malleable under hypnosis — is a
source of concern where hypnosis is used for evidentiary purposes and
accordingly renders its use for forensic purposes suspect.
(i) Can the Technique Be Tested and Has It
Been Tested?
38
Numerous references were made at trial and before this Court to studies
on the use of hypnosis and to opinions of experts in the field. What is
apparent from these sources is that the accuracy and effect of hypnosis are
difficult to assess. While some laboratory studies suggest that hypnosis is not
particularly effective in increasing the accuracy of memories, this may be a
result of the laboratory setting itself. As Dr. Matheson, the Crown’s
expert, explained, what makes memories memorable are the emotional associations
that give them meaning. Laboratory studies are largely abstract, and lack the
emotional quality or meaning that normally attaches to “real life” memories
(A.R., at pp. 559-60). The findings of laboratory studies may not, therefore,
be particularly applicable to the area of forensic hypnosis. However, it is
significant that, despite their disagreement on other issues, all the experts
in this case testified that while hypnosis can result in the subject’s
remembering a larger number of details, these will include both accurate and
inaccurate information.
(ii) Has the Technique Been Subjected to Peer
Review and Publication?
39
As noted, hypnosis is not a new technique. It was used in
ancient times, and this case does not concern its usefulness as a therapeutic
tool. What is in issue is its use for forensic purposes. While testifying at
trial, the experts referred to a number of scientific articles and studies on
hypnosis and memory. Moreover, legal commentators have discussed hypnosis
extensively. Since it is the reliability of the technique in the judicial
context that is in issue, these resources are useful for our purposes. Even the
most superficial examination of these commentaries reveals that much of the
substance of the testimonies of the experts heard at trial is supported by the
abundant discussions found in the legal literature. The question whether the
technique has been subjected to peer review and publication can thus be
answered in the affirmative. Dr. Matheson cited the following study while
testifying at trial in this case: Council on Scientific Affairs, “Scientific
Status of Refreshing Recollection by the Use of Hypnosis” (1985), 253 J.A.M.A.
1918. It is also notable that many of Dr. Orne’s publications have been cited
by the courts, including the following: M. T. Orne, “The Use and Misuse of
Hypnosis in Court” (1979), 27 Int.’l J. Clinical & Experimental Hypnosis
311; M. T. Orne et al., “Hypnotically Refreshed Testimony: Enhanced Memory
or Tampering with Evidence?” in Issues and Practices in Criminal Justice
(January 1985), at pp. 5-27. Legal commentaries on the use of hypnosis in
criminal trials have proliferated: B. L. Diamond, “Inherent Problems in the Use
of Pretrial Hypnosis on a Prospective Witness” (1980), 68 Cal. L. Rev. 313;
T. M. Fleming, “Admissibility of Hypnotically Refreshed or Enhanced Testimony”,
77 A.L.R.4th 927 (1990 & Supp. 2006); G. M. Shaw, “The Admissibility of
Hypnotically Enhanced Testimony in Criminal Trials” (1991), 75 Marq. L. Rev.
1; G. F. Wagstaff, “Hypnosis and the Law: A Critical Review of Some Recent
Proposals”, [1983] Crim. L. Rev. 152; K. B. Evans, “Hypnotically Induced
Testimony: Implications for Criminal Law in New Zealand”, [1994] N.Z.L.J.
348; J. Harsel, “The Use of Hypnotically Enhanced Testimony in Criminal Trials”
(1996), 20 Melbourne U.L. Rev. 897; D. R. Webert, “Are the Courts in a
Trance? Approaches to the Admissibility of Hypnotically Enhanced Witness
Testimony in Light of Empirical Evidence” (2003), 40 Am. Crim. L. Rev. 1301.
It is noteworthy that the weaknesses of hypnosis are well known and
uncontroverted. The experts differ not on the shortcomings themselves, but on
the extent of their impact on the witness’s ability to testify.
40
There is a general consensus that most individuals are more suggestible
under hypnosis, that any increase in accurate memories during hypnosis is
accompanied by an increase in inaccurate memories, that hypnosis may
compromise the subject’s ability to distinguish memory from imagination, and
that subjects frequently report being more certain of the content of
post-hypnosis memories, regardless of their accuracy. In sum, while it is not
generally accepted that hypnosis always produces unreliable memories,
neither is it clear when hypnosis results in pseudo-memories or how a
witness, scientist or trier of fact might distinguish between fabricated and
accurate memories.
(iii) What Is the Potential Rate of Error?
41
A recurring theme in the expert testimony at Mr. Trochym’s trial and in
the jurisprudence is that, while hypnosis may assist witnesses to recall
additional detail, the medical community knows very little about how memory
functions or what role hypnosis may have in recalling and/or altering memories.
The general consensus appears to be that memory does not work like a tape
recorder that can be played back but, rather, is constructive or additive.
Remembering may therefore be a more creative mental process than it is usually
understood to be. Given these gaps in scientific knowledge, the admission of
post-hypnosis memories raises a number of concerns. The Crown’s expert, Dr.
Matheson, testified that “the general understanding is that if properly and
professionally done you would probably get more information [through hypnosis],
and that information will be a combination of accurate and inaccurate
[information]” (A.R., at pp. 601-2).
42
The potential rate of error is linked to three factors. The first, and
most significant, of these is the risk of confabulation, or the creation of
hallucinated or false memories. Confabulation can result from the power of
express or implied suggestions, or simply from a strong, unconscious desire to
compensate for a lack of actual memory. It may also result from other causes
that are unknown, because scientists know very little about memory. All three
expert witnesses noted at trial that, while confabulation may also occur
without hypnosis, a person’s suggestibility is enhanced under hypnosis.
43
A second, and related, factor is that a person’s critical faculty
appears to be reduced while he or she is under hypnosis. As Dr. Pollock, one of
two expert witnesses called by the defence, explained, a person who has a
memory in the normal “waking state” will examine it and decide whether it is
accurate and should be reported. A hypnotized person is more likely to report
whatever comes to his or her mind. As a result, while hypnosis may help a
witness recall an event in greater detail, this heightened recollection may
simply contain both more correct and more false details. The greater number of details
the witness remembers may therefore create the illusion that his or her memory
has improved in accuracy.
44
Finally, experts express concern about the potential for “memory
hardening”, a process by which a person who has been hypnotized becomes
increasingly, and unduly, confident in his or her memories. The exact cause of
memory hardening is unknown but the phenomenon has been recognized. It is
described as the “most consistent finding of all in studies on the various
effects of hypnosis” (Shaw, at p. 12). This process is undetectable and
seemingly irreversible. When combined with the possibility that memories have
been tainted through confabulation, improperly phrased questions, or other
unintentional influences, the danger that the accused will be denied a fair
hearing becomes obvious.
45
At trial, Dr. Matheson observed that many of the concerns regarding
post-hypnosis memories, such as confabulation and memory hardening, also apply
to ordinary testimonial evidence. In admitting Ms. Haghnegahdar’s post-hypnosis
memories, the trial judge noted that if judge-made guidelines such as those set
out in Clark can control any tainting that might occur during hypnosis,
then post-hypnosis memories are no more, or less, accurate than ordinary
eyewitness testimony.
46
With respect, I find this view problematic. Hypnosis introduces more
sources of concern and a likelihood that existing fragilities of human memory
will increase, tainting the reliability of the evidence. Furthermore, the
frailties of human memory when unaffected by hypnosis are only just starting to
become known; indeed, the fallibility of eyewitness identification has been a
central concern in a number of inquiries into wrongful convictions. In his
public inquiry into the wrongful conviction of Thomas Sophonow, for example,
the Honourable Peter deC. Cory observed that most triers of fact have implicit
faith in eyewitness identification and that this can be hazardous. He
recommended, among other things, instructing the jury about the shortcomings of
eyewitness identification and cautioning it that the vast majority of wrongful
convictions have resulted from faulty eyewitness identification: The Inquiry
Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of
Entitlement to Compensation (2001), at pp. 33-34. While Justice Cory was
specifically addressing ordinary memory, his recommendations make it all the
more clear why a technique used to enhance memory must be approached with
great caution.
(iv) Has the Technique Been Generally
Accepted?
47
As indicated, there are differences of opinion in the scientific
community on the acceptability of hypnosis for forensic purposes. This has
resulted in some debate, in the courts of a number of jurisdictions, regarding
the admissibility of post-hypnosis memories. In the United Kingdom, for
example, post-hypnosis testimony has not been categorically excluded, although
evidence of a witness who has been hypnotized can be excluded under s. 78 of
the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, on the
basis that it would have an adverse effect on the fairness of the proceedings.
For this reason, the Crown Prosecution Service warns Crown counsel to “advise
the police to restrict the use of hypnotism to people who may be able to give
them a lead on an investigation but who will not be called as witnesses”
(“Hypnosis: Guidance — Hypnosis Of A Witness” (online)). In New Zealand and
Australia, courts have permitted the admission of post-hypnosis evidence where
certain safeguards have been met, resulting in such evidence being declared
inadmissible in several instances: see R. v. McFelin, [1985] 2 N.Z.L.R.
750 (C.A.); R. v. G., [1996] 1 N.Z.L.R. 615 (H.C.); and R. v. Haywood
(1994), 73 A. Crim. R. 41 (S.C. Tasmania). Generally speaking, however,
there has been very little discussion on the admissibility of post-hypnosis
evidence in any of these three jurisdictions.
48
By contrast, courts have discussed the admissibility of post-hypnosis
memories much more frequently in the United States. Two trends have developed.
According to the first, the fact that a witness has been hypnotized goes to the
weight of the testimony rather than to its admissibility. In Harding v.
State, 246 A.2d 302 (1968), the Court of Special Appeals of Maryland held
that the fact that only some of the victim’s testimony was based on
post-hypnosis recollections went to its probative value. As the psychology of
memory has become better understood, however, some courts have developed a
number of safeguards to guide the manner in which hypnosis sessions are
conducted. This more rigorous framework is typified by Hurd, a decision
that, as already mentioned, was one of the main sources of the Clark
guidelines. Although setting a more rigorous standard than in Harding,
the Hurd guidelines are typical of the approach under which
admissibility is subject to the weight to be attached to the particular
witness’s post-hypnosis testimony.
49
The second trend is based on a view that hypnosis is fundamentally
unreliable for the purposes of judicial proceedings and that post-hypnosis
evidence should be excluded. In People v. Shirley, 723 P.2d 1354
(1982), the California Supreme Court held that the testimony of a witness who
has undergone hypnosis to restore his or her memory of events is inadmissible
“as to all matters relating to those events, from the time of the hypnosis
session forward” (p. 1384). This means that a witness who has been hypnotized
to restore his or her memory of an incident may not testify in relation to that
incident, regardless of whether he or she made pre-hypnosis statements about it
that would otherwise have been admissible. At least half of American
jurisdictions now limit the admissibility of post-hypnosis evidence: Moore,
at pp. 1220-22.
50
The cases discussed above illustrate the range of approaches that courts
have developed and also show why it is necessary to be cautious in dealing with
this issue. A further development in the American jurisprudence is also worth
noting. In Rock v. Arkansas, 483 U.S. 44 (1987), the United States
Supreme Court considered whether an accused’s “right to testify” may be
restricted by a state rule that excludes his or her post-hypnosis testimony. In
a 5-4 decision, the majority of the court emphasized the constitutional
underpinnings of the accused’s right to testify on his or her own behalf. The
court observed that an absolute prohibition against the admission of a
defendant’s hypnotically refreshed testimony “on the ground that such testimony
is always unreliable” operates “to the detriment of any defendant who undergoes
hypnosis, without regard to the reasons for it, the circumstances under which
it took place, or any independent verification of the information it produced”
(p. 56). The court concluded that the State had not demonstrated that the
exclusion “of all of a defendant’s testimony that the defendant is
unable to prove to be the product of prehypnosis memory” was justified, and
that “[w]holesale inadmissibility of a defendant’s testimony is an arbitrary
restriction on the right to testify in the absence of clear evidence by the
State repudiating the validity of all posthypnosis recollections” (p. 61
(emphasis in original)). The court chose not to comment on the
constitutionality of prohibitions on post-hypnosis testimony by a defence
witness, as opposed to the accused him or herself.
51
Rehnquist C.J., in dissent, rejected the constitutional exception
articulated by the majority of the court. Highlighting the degree of
controversy within the scientific community regarding the reliability of
hypnosis, the Chief Justice observed that “until there is much more of a
consensus on the use of hypnosis than there is now, the Constitution does not
warrant this Court’s mandating its own view of how to deal with the issue” (p.
65).
52
The constitutionality of a prohibition on the admission of post-hypnosis
testimony by an accused or a defence witness has not arisen in the Canadian
context and was not at issue in the instant case. It would therefore be
premature to comment any further on this point. While it may be true that a
different set of concerns applies to the admissibility of an accused’s own
post-hypnosis memories, the importance of the reliability of post-hypnosis
evidence to the integrity of the trial process as a whole remains a live issue.
53
In sum, it appears that the use of hypnosis in the judicial context has
both supporters and opponents, but that the general tendency is to be extremely
cautious in dealing with post-hypnosis evidence. This debate may continue until
significant advances are made in the science of hypnosis, or until our
understanding of human memory improves significantly.
54
In J.-L.J., Binnie J. mentioned, in addition to the
factors discussed above, the importance of determining the impact of novel
science on the trial process, and in particular of determining whether the
value or utility of the evidence outweighs its potential costs in terms of the
consumption of time, potential prejudice to the accused, and confusion caused to
the trier of fact. For this reason, a judge should, in exercising his or her
role as “gatekeeper”, carefully scrutinize the admissibility of novel
scientific evidence. While parties must be able to put forward the most
complete evidentiary record possible (R. v. Seaboyer, [1991] 2 S.C.R.
577), admissibility will necessarily be circumscribed where the evidence may
“distort the fact-finding process” (J.-L.J., at para. 29). These
concerns are highly relevant where hypnosis is used, because of the controversy
surrounding the forensic use of the technique and the need to explain its
shortcomings if it is in fact to be used.
(c) The Gap Between Clark and J.-L.J.
55
When the factors set out in J.-L.J. are applied to hypnosis, it
becomes evident that this technique and its impact on human memory are not
understood well enough for post-hypnosis testimony to be sufficiently reliable
to be used in a court of law. Although hypnosis has been the subject of
numerous studies, these studies are either inconclusive or draw attention to
the fact that hypnosis can, in certain circumstances, result in the distortion
of memory. Perhaps most troubling is the potential rate of error in the
additional information obtained through hypnosis when it is used for forensic purposes.
At the present time, there is no way of knowing whether such information will
be accurate or inaccurate. Such uncertainty is unacceptable in a court of
law. Furthermore, while the Clark guidelines aid significantly in
ensuring that the hypnotist and police make as few involuntary suggestions as
possible, they afford no protection against external sources of influence or
against the other problems associated with hypnosis, such as confabulation out
of a desire to compensate for a lack of actual memory, an increase in detail
without sufficient assurances that this new information will be accurate, and
memory hardening.
56
In the instant case, for example, Ms. Haghnegahdar’s two conversations
with police prior to the hypnosis session (see the summary of the facts set out
above) may have left her with a conscious or subconscious belief regarding the
right answer to the question whether she saw the appellant on Wednesday or Thursday
afternoon, even if the police sought in all good faith to avoid influencing her
testimony. As Proulx J.A. noted in Taillefer, at p. 19, footnote 1,
citing a 1984 article in the Revue du Barreau, a witness’s unconscious
desire to please can itself exert a subtle pressure on the witness under
hypnosis:
[translation] These
persons, who are very motivated, generally want to help in the investigation.
They have been questioned, often several times, without the desired information
having been obtained. Only when faced with an impasse is hypnosis used. From
the outset, these witnesses and victims have a good idea of what the police
expect from them and what they should remember. They will be more attentive to
any indication, or sign, which could pop up during their interaction with the
person performing the hypnosis. If, in addition, the hypnotized person believes
that everything that will be said under hypnosis is reliable (a belief shared
by certain professionals and a large part of the public) then everything is in
place for confabulation and the creation of pseudo-memory.
57
Because the Clark guidelines focus only on the actual hypnosis
session, it may also be very difficult to determine whether improper
suggestions occurred during other conversations with police officers or
otherwise. For example, in R. v. Baltovich (2004), 73 O.R. (3d)
481 (C.A.), the officer who drove the witness to the hypnotist’s office may
have had a copy of the Toronto Sun on the seat of his cruiser. The front
page of that edition had a large photo of the accused and identified him as the
prime suspect in the murder. During the hypnosis session, the witness described
the accused. This case illustrates that the risks of tainting do not start with
the hypnosis session and that the actual reliability is therefore difficult to
establish.
58
Moreover, as Dr. Pollock testified at trial, it is unclear that the Clark
guidelines can actually protect against outside influence. Dr. Matheson
appeared to agree that the goal of Clark may be unattainable in stating
that “in the real world of doing this work you can’t totally avoid
contamination. You can’t avoid possible contact with other witnesses, the media,
or police, or conversations with neighbours, and things like that” (A.R., at p.
557).
59
Finally, the Clark guidelines do not address the problems of
confabulation and memory hardening, or the reality that hypnosis may compromise
the right of cross-examination, thereby prejudicing an important instrument in
the trial process. Experts appear to agree that neither the experts nor the
individuals who have undergone hypnosis can distinguish confabulated memories
from true memories. This is problematic for counsel cross‑examining the
witness at trial, since it will be impossible to challenge the witness on the
veracity of his or her memory, except insofar as a post-hypnosis memory is
inconsistent with a pre‑hypnosis statement.
60
Of course, other independent evidence may assist jurors in determining
whether evidence derived from hypnosis is reliable or not; for example, facts
related while under hypnosis can be corroborated by other evidence or may be
consistent with evidence given before the hypnosis session. However, if
evidence whose reliability cannot really be tested is admitted and relied upon
simply because it is consistent with other admissible evidence, the danger is
that a web of consistent but unreliable evidence will lead to a (potentially
wrongful) conviction. As a result, given our current understanding of hypnosis,
the admission of post-hypnosis memories may render the right of cross‑examination
illusory, thereby undermining a key aspect of the adversarial process.
61
In sum, it is evident, based on the scientific evidence on record, that
post-hypnosis testimony does not satisfy the test for admissibility set out in J.-L.J.
While hypnosis has been the subject of extensive study and peer review, much of
the literature is inconclusive or highly contradictory regarding the
reliability of the science in the judicial context. Unless a litigant reverses
the presumption on the basis of the factors set out in J.-L.J., post-hypnosis
testimony should not be admitted in evidence.
(d) Limited Use of Testimony Given by a
Witness Who Has Undergone Hypnosis
62
Some novel scientific techniques, such as polygraph examinations, that
are inadmissible for evidentiary purposes may nevertheless continue to be
useful for the investigation of offences. For example, while concerns about
oath helping, character evidence and delay may prevent the use of polygraph
results in court, these concerns do not preclude police officers from
administering polygraph tests as an investigative tool: R. v. Béland,
[1987] 2 S.C.R. 398.
63
The inadmissibility of post-hypnosis testimony does not mean that
hypnosis may not be used for other purposes. However, investigators must be
conscious of the potential consequences of hypnotizing a witness.
64
A trial judge may have to rule on a request to allow a witness to
testify on topics in respect of which questions were not asked during
the hypnosis session. The judge must then balance the risks inherent in the
use of hypnosis against the search for truth. Although this testimony may be
tainted by post-hypnosis memories and although the cross-examination of the
witness may be impaired, the judge may be satisfied that the detrimental
effects are outweighed by the probative value of the testimony. In such a
case, the trial judge may consider it appropriate to allow evidence on topics that
were not touched on during the hypnosis session to be put to the jury. However,
if the judge considers that the evidence is so important that it has to be put
to the jurors despite its potential shortcomings, those shortcomings have to be
mentioned. The judge must then give proper instructions to the jury concerning
the effect of hypnosis on the weight of the testimony. The rationale for
requiring specific instructions even though a topic was not touched on in the
session is that the impact of hypnosis on testimony is not limited to
post-hypnosis recollection and that testimony on the topic in question is
accordingly likely to affect the jury’s assessment of the witness’s testimony.
65
Where evidence on topics covered during the hypnosis session is
concerned, however, the trial judge should not admit it even if the witness did
not change his or her testimony while under hypnosis. In my view, it would be
inconsistent with the inadmissibility rule to allow those parts of the
testimony, since they are tainted by the inherent shortcomings of the technique
of hypnosis. Moreover, it would seem risky to take it for granted that the
testimony at trial will be limited to pre-hypnosis memories. Indeed, the
possibility that examination or cross-examination at trial will prompt answers
more detailed than the recorded pre-hypnosis memories should not be
underestimated. For example, let us assume that an accident victim tells
police that, although she is not sure, she thinks it was a red car that hit her
late at night. In an attempt to attain greater certainty, the police arrange
for the victim to undergo hypnosis, and while hypnotized, she confirms that the
car was red. At trial, a lawyer explores the matter further and she adds the
make, model and year of the vehicle. It would in such a case be impossible to
know whether the additional details were related to pre- or post-hypnosis
recollection, and therefore whether they were accurate or inaccurate. Thus, in
addition to concerns about memory hardening and the impairment of
cross-examination, there is also the possibility that a witness will recall
additional details whose accuracy is suspect.
66
The overriding problem is that testimony on topics covered in a hypnosis
session will be tainted. It will not cease to be tainted merely because it is
consistent with a pre-hypnosis statement. Indeed, as Professor Shaw states (at
p. 76), “Determining the extent of the witness’s prehypnotic recollection as
well as the extent to which memory hardening has occurred may be difficult to
ascertain with precision.” Given the present understanding of memory, the risk
of triers of fact being exposed to inadmissible statements appears to me to be
too high to consider sidestepping the rule.
(e) Conclusion on Hypnosis
67
The admission of Ms. Haghnegahdar’s post-hypnosis testimony constitutes
an error of law. A further complication in this case needs to be mentioned. As
a result of the agreement entered into by the parties, defence counsel did not
cross-examine Ms. Haghnegahdar about her pre-hypnosis statements and the jury
was not informed that the witness had undergone hypnosis. I do not doubt that
this agreement came about because defence counsel wished to minimize the risk
that the jury would give undue weight to the witness’s testimony if it was
informed that she had undergone hypnosis. However, the fact remains that the
jury was left without the proper evidentiary basis on which to assess the
accuracy of the witness’s testimony. The prejudice caused by the absence of
cross-examination was exacerbated by Crown counsel’s closing remarks:
Gity Haghnegahdar also testified that she saw the
accused that same afternoon. Gity was certain that it was Wednesday, October
14, 1992, not some other Wednesday, and she was one hundred percent sure
that it was the accused. Mr. Lynch was unable to shake her on that in
cross-examination. She knew what week it was, she knew what day it was, she
knew what time it was.
.
. .
Gity was sure of her evidence on these
issues, and let’s not forget she was interviewed that very week by the
police, so the events were still fresh in her mind. It is not a case of someone
who is interviewed months afterwards and asked to try to recall events. She is
interviewed that very week. [Emphasis added.]
Since Crown
counsel knew both that Ms. Haghnegahdar had in fact changed her statement
regarding the day she saw the appellant and that defence counsel was
effectively prevented from cross-examining Ms. Haghnegahdar on the
inconsistency between her pre- and post-hypnosis memories, it was unseemly for
Crown counsel to characterize Ms. Haghnegahdar’s testimony as being unshaken.
68
Other grounds have also been raised by the appellant, but only one of
them must be considered in the present appeal: the admission of what is
characterized as “similar fact” evidence.
B. Similar Fact Evidence
(1) Summary of Facts on the Issue of Similar
Fact Evidence
69
At trial, Ms. Haghnegahdar testified that she had heard someone banging
on the victim’s apartment door the night of the murder. Given the timing, this
person was likely the murderer. In support of its theory that the person who banged
on the door was Mr. Trochym, the Crown was permitted to call Darlene Oliphant,
a former girlfriend of the appellant’s, to testify. Ms. Oliphant testified that
when she had asked the accused to move out of her apartment at the end of a
seven-year relationship, he had done so, but had returned late that night, or
early the next morning, and banged at her door, yelling profanities.
(2) Decisions of the Courts Below on the
Similar Fact Evidence Issue
70
On the admissibility of Darlene Oliphant’s testimony that the accused
had banged on her door after she had broken off their relationship, the trial
judge ruled that this “similar fact” evidence should be admitted because the
probative value was high and outweighed any prejudicial effect. While the rest
of Ms. Oliphant’s evidence of the prior relationship was not sufficiently
relevant to the issue before the court, the trial judge concluded that the
evidence that the accused had banged on the door was circumstantially relevant
to the issue of identity because it showed “a pattern of violent behaviour
engaged in by the accused when rejected by a girlfriend following a serious
relationship” (Court of Appeal reasons, at para. 44).
71
On appeal, the Ontario Court of Appeal rejected the appellant’s challenge
to the admission of Darlene Oliphant’s testimony and upheld the trial judge’s
finding that the probative value of this “similar fact” evidence outweighed its
prejudicial effect. MacPherson J.A. held that this decision was entitled to
considerable deference and that, although the trial judge did not have the
benefit of this Court’s decisions in R. v. Arp, [1998] 3 S.C.R.
339, and R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, “the trial
judge’s reasoning is faithful to those decisions and his conclusion is well
within their parameters” (para. 47). Finally, MacPherson J.A. expressed the
view that, although Crown counsel had strayed to some extent in his closing
address from the limited purpose for which the evidence had been admitted, the
trial judge had corrected these transgressions by reinforcing, in his “clear
and accurate charge”, the use to which the evidence could be put: to establish
the identity of the person who had knocked on the door, but not to draw
the inference that the appellant was a person of bad character and thus more
likely to have committed the murder (para. 48).
(3) Analysis on the Similar Fact Evidence
Issue
72
In R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 735, it was
established that where the Crown seeks to adduce evidence of a morally
repugnant act committed by an accused, the probative value of the evidence must
be high enough to outweigh its potential prejudicial effect. Cory J. stated the
following in Arp, at para. 48:
[W]here similar fact evidence is adduced to prove a fact in issue, in
order to be admissible, the trial judge should evaluate the degree of
similarity of the alleged acts and decide whether the objective
improbability of coincidence has been established. Only then will the
evidence have sufficient probative value to be admitted. [Emphasis added.]
Moreover, the
balance between probative value and prejudicial effect can be assessed only “in
light of the purpose for which the evidence is proffered” (Handy,
at para. 69 (emphasis deleted)).
73
In the present case, the purpose of the evidence was to establish the
identity of the person who had knocked on Ms. Hunter’s door late at night.
Identifying the appellant as the person who had done so was of pivotal
importance to establishing that he was the murderer.
74
The admission of Ms. Oliphant’s evidence is highly problematic given the
generic quality of the acts. In Handy, Binnie J. (at para. 82)
identified a number of factors that have been held to connect facts to similar
circumstances, including:
(1) the extent to which the other
acts are similar in detail to the charged conduct;
(2) the number of occurrences of the
similar acts;
(3) the circumstances surrounding or
relating to the similar acts; and
(4) any distinctive feature(s)
unifying the incidents.
Although Handy
was decided after the trial in the case at bar, MacPherson J.A. concluded that
the trial judge’s reasoning was faithful to Handy and that his
conclusions were well within its parameters. With respect, I disagree.
75
The trial judge stated that the evidence “is admissible to show a pattern
of emotional involvement which, when followed by rejection, turns to
violence. Or, to put it another way, specifically it is evidence that the
Oliphant relationship can show a pattern of violent behaviour engaged in
by the accused when rejected by a girlfriend following a serious relationship”
(Court of Appeal reasons, at para. 44 (emphasis added)). With respect, it would
be rare for a single incident to evidence a “pattern”. A pattern is observed
only if it is assumed that it was in fact the appellant who banged on the
deceased’s door the night of the murder. Moreover, banging on a door cannot be
characterized as “distinct” or “unique” conduct that is somehow identifiable
with a particular accused. The fact that the accused had in the past knocked on
an ex-girlfriend’s door can hardly be said to support the inference that he was
the person who knocked on the door in this instance. On the identity issue,
this evidence had little, if any, probative value.
76
Not only did this evidence lack probative value, but it was also highly
prejudicial, particularly in light of how it was used by the Crown. Crown
counsel referred to Darlene Oliphant’s evidence in his closing statement.
Noting that Ms. Oliphant, unlike the deceased, was “wise and chose not to open
her door and let the accused in” when he banged on her door, Crown counsel made
the following comment:
So we will never know exactly what would have happened to Darlene had
she let the accused in and had she been alone at the time.
But I respectfully submit that the accused’s angry
comment to Darlene through the door that “you will never have anyone else,”
would seem to demonstrate that any encounter she might have had with the
accused would not have been a peaceful one, as he was not handling the
rejection at all well.
This comment
strayed far from the purpose for which Ms. Oliphant’s evidence had been
introduced. The Crown’s speculation regarding the possible outcome had Ms.
Oliphant opened the door to Mr. Trochym was both highly prejudicial to the
appellant and of doubtful relevance to his prosecution for the murder of Donna
Hunter. The Crown’s comment cannot be said to go to identifying the accused as
the person who had knocked on the door.
77
The trial judge did not alleviate the prejudice. He instructed the jury
that the similar facts showed “a pattern of violent behaviour engaged in
by the accused when rejected by a girlfriend following a serious relationship”
(Court of Appeal reasons, at para. 44 (emphasis added)). There was no evidence
that the accused had committed violent acts against Ms. Oliphant. Adducing the
evidence to show that the accused engages in violent behaviour is likely to
have caused prejudice to the accused, since it went not to identifying him as
the person who had knocked on the door, but to establishing that he is a “bad
person”, and would have caused the jury to be less critical of the evidence.
78
In my view, the evidence of the appellant’s alleged reaction to the
prior breakup does not meet the objective test of “improbability of
coincidence”. The fact that the appellant had, on one previous occasion, banged
on a girlfriend’s door after their relationship ended is not sufficiently
probative to outweigh the potential prejudicial effect of admitting that
evidence for the purpose of identifying him as the killer. It was therefore an
error of law to admit this evidence.
C. Other Grounds of Appeal
79
On appeal, the appellant raised a number of other concerns. These
included adverse inferences the Crown sought to adduce from the appellant’s
post-offence conduct, the treatment of the “alibi”, the manner in which Crown
counsel cross-examined the appellant, and comments made by Crown counsel in his
closing comments to the jury. In view of my finding that the admission of the
post-hypnosis testimony and similar fact evidence constituted serious errors of
law, it is not necessary to address these concerns other than by recalling Rand
J.’s warning in Boucher v. The Queen, [1955] S.C.R. 16, at pp. 23-24:
It cannot be over‑emphasized that the purpose
of a criminal prosecution is not to obtain a conviction, it is to lay before a
jury what the Crown considers to be credible evidence relevant to what is
alleged to be a crime. Counsel have a duty to see that all available legal
proof of the facts is presented: it should be done firmly and pressed to its
legitimate strength but it must also be done fairly. The role of prosecutor
excludes any notion of winning or losing; his function is a matter of public
duty than which in civil life there can be none charged with greater personal
responsibility. It is to be efficiently performed with an ingrained sense of the
dignity, the seriousness and the justness of judicial proceedings.
Crown counsel
are expected to present, fully and diligently, all the material facts that have
evidentiary value, as well as all the proper inferences that may reasonably be
drawn from those facts. However, it is not the Crown’s function “to persuade a
jury to convict other than by reason”: R. v. Proctor (1992), 11 C.R.
(4th) 200 (Man. C.A.), at para. 59. Rhetorical techniques that distort the
fact-finding process, and misleading and highly prejudicial statements, have no
place in a criminal prosecution.
V. Conclusion and Application of the
Curative Proviso
80
Pursuant to s. 686(1) (b)(iii) of the Criminal Code , an
appellate court may dismiss an appeal where, even though the trial court has
erred in law, no substantial wrong or miscarriage of justice has occurred. This
provision reads as follows:
686. (1) On the hearing of an appeal against
a conviction or against a verdict that the appellant is unfit to stand trial or
not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
.
. .
(ii) the judgment of the trial court should be set aside on the
ground of a wrong decision on a question of law, or
.
. .
(b) may dismiss the appeal where
.
. .
(iii) notwithstanding that the court is of the opinion that on any
ground mentioned in subparagraph (a)(ii) the appeal might be decided in
favour of the appellant, it is of the opinion that no substantial wrong or
miscarriage of justice has occurred . . .
81
In R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86, at para. 26,
Arbour J., writing for the majority, stated that “[t]here are essentially two
classes of errors which have been identified by reviewing courts and which have
led to a proper application of the proviso. The first category is that of so‑called
‘harmless errors’, or errors of a minor nature having no impact on the verdict.
The second category encompasses serious errors which would justify a new trial,
but for the fact that the evidence adduced was seen as so overwhelming that the
reviewing court concludes that there was no substantial wrong or miscarriage of
justice.” With respect to serious errors, Arbour J. (at para. 31) cited
Sopinka J. in R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916, in
support of the proposition that the proviso is applicable only if “the evidence
is so overwhelming that a trier of fact would inevitably convict. In such
circumstances, depriving the accused of a proper trial is justified on the
ground that the deprivation is minimal when the invariable result would be
another conviction.”
82
The instant case is one that falls squarely within the second category
of serious errors that will justify a new trial unless the properly adduced
evidence is so overwhelming that a conviction is inevitable, or would
invariably result. This standard should not be equated with the ordinary
standard in a criminal trial of proof beyond a reasonable doubt. The
application of the proviso to serious errors reflects a higher standard appropriate
to appellate review. The standard applied by an appellate court, namely that
the evidence against an accused is so overwhelming that conviction is
inevitable or would invariably result, is a substantially higher one than the
requirement that the Crown prove its case “beyond a reasonable doubt” at
trial. This higher standard reflects the fact that it is difficult for an
appellate court, in particular when considering a jury trial, since no
detailed findings of fact will have been made, to consider retroactively the
effect that, for example, excluding certain evidence could reasonably have had
on the outcome.
83
In the case at bar, I have found that the evidence used to convict the
accused of second degree murder included two important items that should never
have been put before the jury. The question of the application of the curative
proviso is one that is easily answered in the negative. This is not a case
where I can conclude that there is no reasonable possibility that the verdict
would have been different had the errors not been made. The post-hypnosis
evidence, considered critical by the Crown and characterized as significant by
the judge, has to be excluded. The similar fact evidence must also be excluded.
Once those two pieces of evidence are withdrawn, it cannot be said that the
remaining evidence “is so overwhelming that [the] trier of fact would inevitably
convict”.
84
I would therefore allow the appeal, set aside the conviction and order a
new trial.
The following are the reasons delivered by
85
Charron J. — I agree with my colleague, Deschamps J., about the disposition of
this appeal for the reasons she gives, except for the limits she places on the
use of the testimony of a witness who has undergone hypnosis, as explained in
para. 64 of her reasons.
86
First, my colleague would admit in evidence only those parts of the
testimony that were not subject to questions during the hypnosis session and
only when the trial judge is satisfied that any detrimental effects resulting
from the hypnosis are overcome by the probative value of the testimony.
Second, my colleague would make it mandatory in all such cases that special
instructions be given to the jury concerning the effect of hypnosis on the
weight of the testimony.
87
I agree that those parts of the testimony of a witness who has undergone
hypnosis that were not the subject-matter of the hypnosis can be
admitted. For example, if a complainant, who alleges that she was sexually
assaulted by an assailant she cannot identify, is questioned under hypnosis
about the identity of her assailant, her testimony about the assault should be
admissible in the usual way. In my view, there is no good reason to exclude
her testimony about the assault. Hence, in such cases, it would not be
necessary for the proponent of the evidence to show that the detrimental
effects of the hypnosis are overcome by the probative value of the testimony.
88
In addition, it is my view that the trial judge should have the
discretion to admit post-hypnosis testimony when the proposed testimony is
shown, usually by means of a pre-hypnosis statement made by the witness, to be
entirely based on the witness’s pre-hypnosis memories. To take my previous
example, if the complainant gave a pre‑hypnosis statement describing her
assailant as a white, heavy-set man and she still maintains that memory
following the hypnosis, it should be open to the trial judge to admit the
testimony about the identity of the assailant if the trial judge is satisfied
that any detrimental effect resulting from the hypnosis is overcome by the
probative value of the evidence. I appreciate that there may nonetheless be
lingering detrimental effects flowing from the hypnosis, such as memory
hardening, as described by my colleague. However, it is my view that proof of
the consistent pre-hypnosis statement can constitute sufficient rehabilitation
of the witness to warrant admission of the testimony. In my respectful view,
the approach adopted by my colleague overshoots the underlying purpose for
excluding post-hypnotic memories.
89
Finally, in all cases where the testimony of a witness who has undergone
hypnosis is admitted in accordance with these reasons, I would leave it to the
discretion of the trial judge to determine in the circumstances of the
particular case whether expert evidence is necessary to explain those effects
and whether any special instruction is called for to assist the jury in its
assessment of the evidence.
90
In other respects, I agree with my colleague.
The reasons of Bastarache, Abella and Rothstein JJ. were delivered by
91
Bastarache J. (dissenting)
— Stephen Trochym was convicted, after a 14-week trial, by judge and jury, for
the second degree murder of Donna Hunter. The Crown led a strong case against
the accused, calling over 40 witnesses. The appellant contests the admission
of several pieces of evidence and alleges Crown improprieties in the conduct of
its case. Except for the similar fact evidence of Darlene Oliphant, I find no
error on the part of the trial judge for admitting the evidence in issue, nor
do I find the Crown’s conduct to have been problematic. I do not find the
admission of post-hypnosis testimony to have been problematic in this case.
Most importantly, I conclude that the evidence against Mr. Trochym was so
overwhelming as to permit the application of the curative proviso. In this
respect, I find it necessary to set out the facts in far more detail than does
my colleague Justice Deschamps.
1. Facts
92
Donna Hunter’s body was found in her apartment around 11:00 p.m. on
October 16, 1992. A concerned friend, who had tried to reach Ms. Hunter
several times by phone in the preceding days only to realize her phone was off
the hook, contacted Ms. Hunter’s superintendent. He suggested that she call
the police, who immediately came to the scene. The door to the apartment was
found unlocked and Ms. Hunter’s body was found in a seated position on the
floor, her back against her couch and head slumped upon the couch cushion. Her
nightgown was positioned in such a way to reveal her breasts and underwear.
She had been stabbed repeatedly in the throat with a knife, severing her
jugular. There were numerous other wounds on her body as well. It was clear
from the state of decomposition of the body that Ms. Hunter had been dead for
some time.
93
Police investigators placed the time of the murder between 1:00 a.m. and
5:20 a.m. on Wednesday, October 14, 1992. They also concluded that the body
had been moved some 8 to 12 hours after the murder. Given the small amount of
blood found on the floor by the body, and the great amount found soaked into
the cushions of the couch, forensics concluded that Ms. Hunter was killed on
the couch facing downwards. The lividity on the body (discolouration of skin
where blood pools on account of the pull of gravity post-mortem) was also
consistent with her body having been laying face down on the couch for the
first 8 to 12 hours following death, rather than in a seating position on the
floor. The crime scene also appeared to be rearranged. The couch cushions, and
other items, had been moved to hide dried blood stains. Police were sure that
it was only the murderer who would have moved the body and rearranged the
scene.
94
It did not appear that a stranger could have committed the murder.
There was no sign of a break-in. No money or other valuables were stolen from
Ms. Hunter’s apartment. Aside from the arranging of Ms. Hunter’s nightgown,
there was no evidence of sexual assault. Police believed that the killer
intentionally tried to make it look as if the murder had been sexually
motivated. Ms. Hunter’s friends testified that she had been a very
security-conscious person and would not have opened her door to a stranger in
the middle of the night. As well, a stranger would not have a motive to rearrange
the scene or make the murder look sexually motivated. Nor would a stranger
take the risk of staying at the scene for several hours or later returning to
the scene in order to do so.
95
Gity Haghnegahdar, Ms. Hunter’s neighbour, who was up late studying,
testified to hearing someone banging on Ms. Hunter’s apartment door between
1:00 a.m. and 2:00 a.m. of Wednesday, October 14. (I note that Ms.
Haghnegahdar’s memories on this point were not subject to hypnosis.) She
described hearing someone banging very hard on the door and a man asking to be
let in and Donna Hunter yelling at him that she would not open the door. This
went on for about 5 to 10 minutes, until Ms. Haghnegahdar heard the door open,
a conversation take place, the pair enter the apartment and close the door
behind them. From this evidence, the estimated time of her death, and the
evidence supporting that the murderer was not a stranger, police deduced that
the person banging was someone Ms. Hunter knew and that this person was the killer.
96
The Crown’s investigation revealed that no one Ms. Hunter knew had a
motive to kill her, except for the appellant. His motive was her attempt to
break up with him on the evening of October 13, 1992. Mr. Trochym and Ms.
Hunter met at a bar on December 31, 1991 and began dating soon after. In April
1992, Mr. Trochym moved into Ms. Hunter’s apartment. There was a lot of
evidence adduced at trial to show that Mr. Trochym had very strong feelings for
Ms. Hunter right up until her murder. For example, he gave her love notes and
cards, an “eternity” ring, which symbolizes life-long commitment, and had
expressed his intention to marry Ms. Hunter to a co-worker. This was
contradictory to Mr. Trochym’s evidence that their relationship had petered out
by the spring of 1992 and that their relationship was more like one of
roommates that occasionally had sex.
97
There were also many witnesses, including Ms. Hunter’s friends and the
employees and patrons of the bars the couple frequented, who testified that Mr.
Trochym was both possessive and controlling of Ms. Hunter and got extremely
jealous when she spoke with other men. A few witnesses testified to seeing Mr.
Trochym become physically and verbally abusive with Ms. Hunter.
98
Most importantly in this respect, there was evidence of Ms. Hunter’s
friends attesting to her growing resolve to end the relationship during the
fall of 1992. Specifically, there was evidence that she had decided to break
up with him the evening of October 13, 1992. The testimony of bar patrons and
employees who saw Mr. Trochym and Ms. Hunter together that evening, first
at Bert & Ernie’s bar, then later at Shakey’s bar, support
that she was attempting to ignore him and that Mr. Trochym was not receptive to
this. For example, a bar patron at Bert & Ernie’s testified to
seeing Mr. Trochym trying to “suck up” to Ms. Hunter, trying to put his
arm around her and kiss her, and Ms. Hunter pulling away and telling him to go
away. This witness, as well as the bar manager and the doorman, testified to
seeing Ms. Hunter run out of the bar at one point on the evening of October 13,
and Mr. Trochym going after her, bringing her back in after an argument
outside, Mr. Trochym then trying to be “lovey dovey” and Ms. Hunter not buying
it. Later at Shakey’s bar, Mr. Trochym was seen arguing with
Ms. Hunter and one of her friends and at one point grabbing her by the
arms and pulling her aside. This evidence contradicted Mr. Trochym’s testimony
that the reason Ms. Hunter was upset that evening related to money and
problems with her children.
99
The Crown was able to show that not only did Mr. Trochym have a motive
to kill Ms. Hunter, he also had the opportunity to do so. At some point, Mr.
Trochym left Shakey’s without Ms. Hunter and returned to Bert &
Ernie’s where he was refused service. The bartender at Bert &
Ernie’s testified that this was around 12:30 a.m. The distance of the
drive between Bert & Ernie’s bar and Ms. Hunter’s apartment would
have placed him at the apartment around 1:00 a.m. His arrival would have been
concurrent with the time Ms. Haghnegahdar testified to hearing the banging on
Ms. Hunter’s door. The Crown’s theory was that, in a rage and locked out,
Mr. Trochym banged on the door, convinced Ms. Hunter to let him in, and then
killed her.
100
Mr. Trochym’s version of events was that after being refused service at
the bar, he returned back to the apartment shortly after 11:30 p.m. and Ms.
Hunter came home 10 to 15 minutes later. They argued over money, and having
wanted to separate from her for many months, Mr. Trochym decided to move back
to his parent’s house permanently. He took a taxi back to his parents’ house,
as he had locked the keys to the underground parking lot in his car. He
arrived there around 12:30 a.m., went to sleep, woke up at 5:30 a.m. the next
morning and arrived at work, travelling via subway, at about 7:20 a.m.
However, Mr. Trochym’s father did not recall seeing his son at the house that
morning. Contrary to his claim that he arrived at work on time that day, two
of Mr. Trochym’s co-workers testified to him being two hours late. As well,
contrary to Mr. Trochym’s claim that he left his car in the apartment parking
garage, the security guard at Canada Post testified to seeing Mr. Trochym’s car
in its designated parking space that day when he arrived at 11:00 a.m.
101
In addition to this evidence surrounding the time of the actual murder,
the Crown produced extensive evidence of Mr. Trochym’s conduct in the days
following the murder that firmly supported that he murdered Donna Hunter.
102
Most importantly, there was the sighting of Mr. Trochym at the apartment
building, and specifically the sighting of him coming out of her apartment at a
time when forensics determined she would have already been dead, but before her
body was discovered by authorities. Whether one accepts the pre-hypnotically
refreshed memories of Ms. Haghnegahdar seeing Mr. Trochym around 3:00 p.m. on
Thursday or her hypnotically refreshed memories of seeing him around 3:00 p.m.
on Wednesday, her eye-witness sighting of him places him at the crime scene at
a time when he would have known Ms. Hunter’s murdered body was inside the
apartment. The Crown argued that this is when Mr. Trochym returned to the
apartment to move the body to make the murder look sexually motivated.
103
There was the evidence of Gordon Raymer, Ms. Hunter’s building
superintendent, and Phyllis Humenick, the superintendent’s babysitter. Both
placed Mr. Trochym, wearing a dark hip-length coat and dark pants, at the
apartment building, looking to be let into the parking garage, between 1:55
p.m. and 2:30 p.m. on Wednesday. This corroborated Ms. Haghnegahdar’s evidence
of seeing Mr. Trochym on the Wednesday. Second, Ms. Humenick’s and Mr.
Raymer’s evidence contradicted Mr. Trochym’s evidence that he had been at work
all afternoon and had only gone to the apartment building after work that day.
104
The Crown adduced evidence that despite his claim to being at work all
afternoon on Wednesday, October 14, and having computer records showing him
logged on to Canada Post computers that afternoon, there would have been an
opportunity for him to sneak out of his work area, unnoticed by co-workers.
There was also evidence from Mr. Trochym’s supervisor that it was possible that
someone else could have logged into the computer network using Mr. Trochym’s
password. This supervisor recounted one documented incident in March 1993 when
someone else logged onto Mr. Trochym’s computer station using his password. As
well, no witness could confirm his absence or presence at work that afternoon.
There was, however, evidence from a Canada Post security guard that he had seen
Mr. Trochym hanging around after his shift ended at 4:00 p.m., which was
unusual for him, and acting as if trying to be noticed by others.
105
The Crown argued that Mr. Trochym planned to “find” the body, under the
pretense of going to the apartment for his belongings a few days after the
murder. He went to the apartment on the afternoon of Saturday, October 17,
wearing clothes unsuitable for moving furniture (dress pants and a tie) and
accompanied by his old and ailing father, who would not have been strong enough
to carry anything. He was met by a police officer guarding the door and was
not permitted entry. He did not inquire into what was going on or Ms. Hunter’s
well-being. When left a message later that day by the same police officer, who
wanted to provide him with further information, Mr. Trochym did not
return the call.
106
There was also the evidence of Detectives Clarke and McCulla, who
interviewed Mr. Trochym on Sunday, October 18. During this interview Mr.
Trochym was asked about his relationship with Ms. Hunter, his whereabouts
around the time of her murder, and how he had come to discover that she had
been murdered. On this last question, Mr. Trochym indicated that after
returning from a restaurant on Saturday evening with his brothers, Michelle
McKinnon, the girlfriend of one of Mr. Trochym’s brothers, after hearing
rumours about Ms. Hunter’s death, phoned the police for information. Mr.
Trochym recounted that after getting off the phone, she turned to
Mr. Trochym and his brothers and made a horizontal motion across her neck
as if to indicate that Ms. Hunter’s throat had been cut. Ms. McKinnon
testified at trial that she had only been informed of Donna’s death by police,
not that she was murdered or had her throat cut, and she denied ever making
such a gesture across her neck. The police corroborated her account by
testifying that they did not release any information about the means of Ms.
Hunter’s death to the public. This demonstrated that Mr. Trochym knew of Ms.
Hunter’s means of death before anyone else could have.
107
The Crown also relied on the police interview of October 18, 1992, to
argue that Mr. Trochym deliberately omitted relevant information from his
statement (such as returning to Bert & Ernie’s bar and being refused
service on the evening of October 13), downplayed his feelings for Ms. Hunter
and lied about aspects of their relationship.
108
The Crown also argued that the excuses Mr. Trochym gave to the police as
the reason for not attending a second interview (that he had “darts and
haircut” commitments) constituted proof that Mr. Trochym’s earlier unsolicited
commitment to helping their investigation was only made in order to avoid
suspicion. Further, there was evidence adduced regarding the appellant’s failure
to attend Ms. Hunter’s visitations, funeral or benefit dinner, his failure to
contact her friends or family to express his condolences, his failure to tell
any of his co-workers about Ms. Hunter’s death or request bereavement leave.
The admission of this evidence was challenged on appeal as problematic. The
majority finds it unnecessary to comment on this evidence; I will deal with
these issues and conclude that such evidence properly met the standards for
admission of post-offence conduct set out in R. v. White, [1998] 2
S.C.R. 72.
109
Finally, there was the evidence of Darlene Oliphant, a former girlfriend
of Mr. Trochym, who testified that after breaking up with him, Mr. Trochym came
to her apartment in the early morning hours and banged on her door and
windows. I will discuss this evidence further in the body of my analysis.
2. Judicial History
110
The rulings of the trial judge and the Court of Appeal ((2004), 71 O.R.
(3d) 611) are summarized in my colleague’s reasons. Any disagreement with her
characterization of the judgments below is noted in the body of my analysis.
3. Analysis
111
A general principle of criminal evidence law is that a just result in
criminal trials is best achieved when the decision maker has all relevant and
probative information before him or her: see R. v. L. (D.O.), [1993] 4
S.C.R. 419, at pp. 454-55. When weighing probative value against prejudicial
effect, this must be kept in mind. It must be recalled that “prejudicial
effect” is the likelihood that the jury, even if properly instructed, will use
the evidence for an improper purpose; it is not created merely by evidence that
is unfavourable to a party’s case: H. Stewart, Evidence: A Canadian
Casebook (2002), at p. 128.
112
Second, it must be recalled that our criminal justice system is an
adversarial one. It is parties, not the trial judge, who hold the primary
obligation of objecting to prejudicial evidence or conduct: see Lavallee,
Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002
SCC 61, at para. 68, per LeBel J. Certainly, the trial judge has an
important gate-keeping function, but we cannot superimpose the role of defence
counsel onto the trial judge.
113
Third, the trial judge’s exercise of discretion in whether to admit
evidence, to intervene, or permit certain conduct by the parties, deserves
deference by appellate courts unless substantial wrong can be demonstrated: see
H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25.
114
Fourth, and finally, appellate courts must have faith in the
intelligence and common sense of juries and in the ability of trial judges to
properly charge juries: see R. v. Corbett, [1988] 1 S.C.R. 670, at
p. 697, and R. v. Swain, [1991] 1 S.C.R. 933, at p. 996, per
Lamer C.J.
3.1 Hypnotically Refreshed Evidence
115
My concerns with the approach to hypnotically refreshed evidence that
Deschamps J. advocates relate not only to her views on the admissibility of
such evidence, but on the implications her decision will have on the
admissibility of scientific evidence in future cases. In my view, the
precedent set by permitting the appellant to succeed on this ground without his
having adduced a sufficient evidentiary foundation for this challenge is, to
say the least, troubling.
116
It is important for the purpose of the legal analysis to follow, that I
first set out in detail the facts surrounding Ms. Haghnegahdar’s hypnosis and
the voir dire held to admit her hypnotically refreshed memories.
3.1.1 Facts of the Hypnosis and Voir Dire
117
Ms. Haghnegahdar was first interviewed by Constable Pike on October 17,
1992, the day following the discovery of Ms. Hunter’s body. She told him,
among other things, that she had seen Mr. Trochym come out of Ms. Hunter’s
apartment on Thursday, October 15, 1992, at 3:00 p.m. as she was getting home
from school. At this time, the police were conducting routine interviews of
all Ms. Hunter’s neighbours to determine whether any of them had any relevant
information that would assist the investigation.
118
The next afternoon, Detectives Clarke and McCulla did a follow-up
interview with Ms. Haghnegahdar. The meeting was audio-taped and heard at the voir
dire. During the meeting, she expressed confusion over whether she saw the
appellant leaving the apartment on Wednesday or Thursday. At this early point
in the investigation, the police had not conclusively placed the time of death
in the early morning hours of Wednesday, October 14, as most of the evidence
that led to this conclusion had yet to be investigated. Nor did they know
there were other witnesses placing Mr. Trochym at the apartment building on the
afternoon of Wednesday, October 14. Mr. Raymer, the building superintendent,
and his babysitter, Ms. Humenick, gave statements to seeing Mr. Trochym on the
Wednesday only after this second interview with Ms. Haghnegahdar.
119
Only after receiving these statements from Mr. Raymer and Ms. Humenick
did the police contemplate Ms. Haghnegahdar undergoing hypnosis in order to
clear up the day of the sighting. The session was arranged for November 8, to
be carried out by Dr. Matheson. In arranging the session, police made sure to
convey as little information as possible about the investigation to either Dr.
Matheson or Ms. Haghnegahdar, so to avoid any potential influence leading up to
the session.
120
On the day of the session, Ms. Haghnegahdar was driven to Dr. Matheson’s
office by Detective McCulla. The officer testified to being careful not to
impart any information concerning the case or making suggestions regarding the
information sought from her during their contact. At Dr. Matheson’s office,
Ms. Haghnegahdar and Dr. Matheson were introduced in the waiting room and
then Detective McCulla and Dr. Matheson met privately so that he could be
given a brief overview of the case. This conversation was videotaped, and
heard at the voir dire. Detective McCulla gave Dr. Matheson the
basic facts of the case and told him that Ms. Haghnegahdar saw Mr. Trochym
leaving the apartment and was confused in her second interview about whether
she saw him on Wednesday or Thursday. Detective McCulla told the doctor that
the police would like to have the day and time of the sighting cleared up, but
did not indicate or suggest to Dr. Matheson which day they would prefer the
sighting to have been.
121
Next, Detective McCulla left and the session between Dr. Matheson and
Ms. Haghnegahdar began. The entire hypnosis session between Dr. Matheson
and Ms. Haghnegahdar was videotaped and heard at the voir dire.
The hypnosis consisted of Dr. Matheson putting Ms. Haghnegahdar into a very
relaxed state. Once in this state, he asked her to describe the event of
seeing Mr. Trochym coming out of Ms. Hunter’s apartment on her way home from
school. At this point, she recalled more details than before, such as the
colour of his clothing being “dark” and a “scary” look he gave her. After
describing this, Dr. Matheson asked her to describe what happened afterwards,
specifically what she did once she arrived at her own apartment and for the
rest of the day. Through this she recalled that she had a snack, then took a
nap, was woken up by her alarm clock and had wanted to go back to sleep but did
not because she was worried she would be late to pick up her daughter who was
at piano class until 5:00 p.m. She then described going to pick up her
daughter. At one point, Dr. Matheson asked: “Just notice what day is it?”, to
which Ms. Haghnegahdar responded: “Oh every Wednesday, every Wednesday she has
to practice, piano practice . . .” (A.R., at p. 4023). It was by associating
having to pick up her daughter from piano lessons, which were always on
Wednesdays, with seeing Mr. Trochym coming out of the apartment that same day,
that Ms. Haghnegahdar was able to determine that she saw him on Wednesday as
opposed to Thursday.
122
In the post-hypnosis interview with Detective McCulla immediately
following the session, Ms. Haghnegahdar confirmed that her memory of seeing Mr.
Trochym on Wednesday was directly associated with having to pick up her
daughter from her piano lesson that day. As well, Ms. Haghnegahdar reiterated
those details she recalled in the session concerning his attire when she saw
him, “We’ - I - I saw him ah with the dark a dark jacket and dark pants and
before I didn’t remember but after I had been hypnotized I remember his jacket
was ah zipped up to under his ah cheek”, as well as his “scary eyes”. I note
that she did not say during this interview that Mr. Trochym was wearing a
leather coat or windbreaker. The interview between Detective McCulla and Ms.
Haghnegahdar was videotaped and heard at the voir dire.
123
There was one more interview between the police and Ms. Haghnegahdar
that took place on November 10, 1992. The sole purpose of this interview was
to show her a picture of the appellant to see if this was the same man she
claimed to have seen leaving Ms. Hunter’s around 3:00 p.m. on Wednesday,
October 14.
124
During the voir dire, the trial judge heard five days worth of
evidence. The Crown called Detectives McCulla and Clarke and Dr. Matheson to
testify to their interaction with Ms. Haghnegahdar and each other. The defence
called two expert witnesses, Dr. Pollock, a clinical psychologist, working in
the therapeutic application of hypnosis, and Dr. Yarmey, an expert on memory.
125
The defence experts were able to raise a couple of concerns about
adherence to the Clark guidelines (R. v. Clark (1984), 13 C.C.C.
(3d) 117 (Alta. Q.B.)), though these were fairly trivial. First, Dr. Pollock
noted that the information concerning the case given to Dr. Matheson was not in
writing as required by guideline 3, but instead was oral and was videotaped.
However, he admitted on cross-examination that they still fulfilled the purpose
intended by the guidelines, that is, to monitor and minimize the risk of
inadvertently conveying information to the hypnotist. Second, both Dr. Pollock
and Dr. Yarmey suggested that Dr. Matheson may have unintentionally
assumed that Ms. Haghnegahdar was recovering memory by linking events
together when it was possible that she was not, and this may have influenced
her. The trial judge found, however, in the context of the session as a whole
that Dr. Matheson’s assumption did not seem unreasonable or suggestive (see
A.R., at pp. 775-79; see also, Ruling re Hypnosis, April 5, 1995, at p.
6).
126
Dr. Pollock also talked about confabulation and the difficulty, even for
the hypnotist, of determining which refreshed memories might be real and which
might be imagined. The potential for a subject to be overly confident in their
new memories and for “memory hardening” to occur were also identified. As well,
both Dr. Pollock and Dr. Yarmey raised concerns about the possibility of pre-
and post-hypnosis suggestion.
127
On cross-examination, the Crown was able to demonstrate that none of
these concerns were live concerns with regards to Ms. Haghnegahdar’s evidence.
Both defence experts conceded that independent corroboration of hypnotically
refreshed memories was one way to assess its reliability. Dr. Pollock also
clarified this for the trial judge:
THE COURT: And one of the mechanisms whereby a recovered memory
can be evaluated is by making that memory referable to other known facts?
WITNESS: Yes, that’s true. If there is external, independent
corroboration of the recollection.
THE COURT: So one should approach memories that have been
“recovered” through hypnosis with some measure of scepticism, and one should
look for other evidence capable of confirming the reliability of those
recovered memories?
WITNESS: Yes, very definitely. . . .
(A.R., at pp. 735-36)
Both experts
were aware that the hypnotically refreshed memories of Ms. Haghnegahdar seeing
Mr. Trochym at the apartment building on Wednesday afternoon wearing dark
clothing were corroborated by the evidence of Mr. Raymer and Ms. Humenick.
128
As well, Dr. Pollock admitted on cross-examination that evidence of the
subject being able to exercise critical judgment during the hypnosis session
and in the post-hypnosis interview were reliable indicators that suggestion and
confabulation were not occurring. The Crown went through great portions of the
transcript of the hypnosis session with Dr. Pollock, pointing out multiple
places where Dr. Matheson would ask Ms. Haghnegahdar a question and she
would answer “No” or “I don’t know”. From this process the Crown was able to
draw admissions from Dr. Pollock that Ms. Haghnegahdar was not guessing, not
trying to fill in gaps, nor being compliant or confabulating. The Crown
employed a similar cross-examination technique on Dr. Yarmey, who also agreed
that Ms. Haghnegahdar was not being compliant, nor confabulating to please
Dr. Matheson and was trying to do her best to recall. The Crown was also
able to demonstrate that Ms. Haghnegahdar was not filling in gaps or open to
suggestion when answering questions to which she did not know the answer during
the post-hypnosis interview with Detective McCulla.
129
The Crown also demonstrated on cross-examination that Ms. Haghnegahdar
was able to distinguish between pre- and post-hypnosis memories, a factor that
Dr. Pollock admitted was an important one to look at when assessing the
reliability of memories that have been hypnotically refreshed. Dr. Yarmey made
a similar admission in cross-examination, as well. Dr. Yarmey, the memory
expert, also agreed that the linking or association of memories in a context is
an indication of greater reliability of recovered memories.
130
The only potential external tainting of Ms. Haghnegahdar’s evidence
raised by the experts was the suggestion made by Detectives Clarke and McCulla
in their October 18 interview. Dr. Pollock opined that Detective Clarke’s
questions, “Are there any possibilities that it was Wednesday? Is there any
possibility it was Wednesday? Right now – can you remember what you did on
Wednesday?” might have suggested to Ms. Haghnegahdar that Wednesday was somehow
important to the police. In cross-examination, Crown counsel tested Dr.
Pollock’s opinion by suggesting that, when the entire passage surrounding this
line of questioning is read as a whole, it is clear that Detective Clarke was
only trying to clarify the day and that, in fact, it was Ms. Haghnegahdar
who first raised the possibility that the sighting may have been on Wednesday.
The trial judge agreed that, taken in context, the questions were not leading
or suggestive.
3.1.2 Hypnosis Is Not “Novel Science”
131
Characterizing hypnosis as “novel science” by applying R. v. J.-L.J.,
[2000] 2 S.C.R. 600, 2000 SCC 51, my colleague finds that hypnotically
refreshed memories are, at least for now, presumptively inadmissible (para.
61).
132
This ignores the fact that the technique has been used in Canada for
almost 30 years, and has been employed in Canadian criminal investigations to
assist in memory retrieval of both Crown and defence witnesses for a similar
amount of time. The earliest Canadian cases where this technique is reported
are R. v. Pitt, [1968] 3 C.C.C. 342 (B.C.S.C.), and R. v. K.,
[1979] 5 W.W.R. 105 (Man. Prov. Ct.). Many more cases emerged in the 1980s
and 1990s. As well, as early as 1979, this Court specifically acknowledged the
use of forensic hypnosis by police forces and by defence counsel: see Horvath
v. The Queen, [1979] 2 S.C.R. 376, at pp. 433-34, per Beetz J.
These cases stand for the proposition that hypnosis is in no way a novel
science.
133
A scientific technique or knowledge will be considered “novel” in two
situations: when it is new, or when the application of recognized scientific
knowledge or technique is new (see J.-L.J., at para. 35). In J.-L.J.,
the expert in issue was characterized as a “pioneer in Canada” in trying to use
a generally recognized therapeutic tool, penile plethysmograph, as a forensic
tool in order to determine common traits or characteristics of sexual deviants
(para. 35). This is what made the science in that case “novel”. Hypnosis is
not new science, nor is its use in forensic investigation new.
134
Deschamps J. maintains that the use of hypnosis in criminal
investigation is not frozen in time and subject to judicial scrutiny when
questioned. I agree. The question is how this process is to be undertaken and
what is its object. One important question is the determination of the basis
for the new query. As always, context is important. It is important to note,
with regard to this, that very few Canadian courts have admitted hypnosis
evidence without a voir dire as to its admissibility. This is contrary
to some U.S. states that have adopted a per se admissibility rule (i.e.,
admission without a voir dire): see State v. Brown, 337 N.W.2d
138 (N.D. 1983); State v. Jorgensen, 492 P.2d 312 (Or. Ct. App. 1971); State
v. Glebock, 616 S.W.2d 897 (Tenn. Crim. App. 1981); and Prime v. State,
767 P.2d 149 (Wyo. 1989). This illustrates the difficulty in applying foreign
precedents without paying attention to differences in approaches. In Canada,
the trend has always been to hold a voir dire examining the entire
factual context surrounding the hypnosis evidence, with experts called to
discuss the science of hypnosis and give their opinion as to whether the
evidence in issue is sufficiently reliable to be admitted. See, for example: R.
v. Zubot (1981), 47 A.R. 389 (Q.B.); Clark; R. v. Hart,
[1990] O.J. No. 2678 (QL) (H.C.J.); R. v. Sanchez-Flores, [1993] O.J.
No. 4161 (QL) (Gen. Div.); R. v. Gauld, [1994] O.J. No. 1477 (QL) (Gen.
Div.); R. v. Taillefer (1995), 100 C.C.C. (3d) 1 (Que. C.A.), at p. 22; R.
v. Savoy, [1997] B.C.J. No. 2747 (QL) (S.C.); R. v. Terceira (1998),
38 O.R. (3d) 175 (C.A.), aff’d [1999] 3 S.C.R. 866; R. v. B. (A.)
(2004), 27 C.R. (6th) 283 (C.Q.); and R. v. Baltovich (2004), 73
O.R. (3d) 481 (C.A.). I fail to see how this is not “judicial assessment” of
forensic hypnosis evidence. Clearly, the use of hypnosis evidence has been put
to judicial scrutiny.
3.1.3 J.-L.J. Does Not Apply in
This Case
135
Aside from one of the earliest cases on the subject (R. v. K.),
none of the Canadian cases that have considered hypnotically refreshed evidence
have countenanced a rule of categorical exclusion. As well, other common law
jurisdictions like the United Kingdom, New Zealand and Australia have found
hypnosis evidence admissible and have not opted for categorical exclusion.
While a number of American states have opted to exclude such evidence, this is
quite recent and does not represent a unanimous or even dominant approach. It
is also important to consider the context in which American law operates, as
discussed later.
136
While the use of forensic hypnosis has not been assessed under the
framework set out in J.-L.J., this does not mean that evidence derived
from this technique has been admitted into trials without sufficient scrutiny
into its reliability. Compliance with the Clark guidelines has been seen
as an important, though not the exclusive, condition of admissibility. The
standard of proof on the voir dire, as well as the onus of proof, was
correctly set out by Corbett J. in Sanchez-Flores, at para. 26:
I am treating this application as one where the Crown must establish on
a balance of probabilities that the witness’s hypnotically-aided memory has
achieved an acceptable level of reliability by considering the R. v. Clark
safeguards. Implicit in this approach is that there should be some evidence to
establish that the subject has in fact been hypnotized, and that the subject’s
memory has been retrieved through hypnosis. The R. v. Clark criteria
themselves only address the manner of hypnosis and to these safeguards must be
added the requirement that investigating officers and others involved with the
subject should not intentionally or inadvertently provide the subject with
information.
137
The trial judge in the case at bar relied on Sanchez-Flores as an
authority on the standard of reliability that hypnotically refreshed memories
should meet (see Ruling re Hypnosis, A.R., at pp. 24-27). He saw his role as
ensuring that Ms. Haghnegahdar’s hypnotically enhanced memories met an acceptable
level of reliability, and not simply assuring that the Clark guidelines
were followed, as my colleague suggests:
. . . It seems to me I have to determine whether, having regard to all
of the circumstances surrounding the contact with Gity Haghnegahdar there is any
reason, any risk, any serious risk that her recollection has been contaminated
in the sense that suggestions have been put to her and have assisted her
recollection that make her evidence so manifestly unreliable that it is of
no probative value, or very little probative value.
.
. .
[A]s I see it, what I want to find out is whether or not there is
evidence here that taints the reliability of this evidence in the sense,
did somebody put words in her mouth, did she hear things which make it likely
she is simply responding to what others told her about times and dates, or did
she simply begin to recall more things after the hypnosis session.
If it is true, as the evidence suggests, it was the
latter, then to me the evidence prima facie would be admissible subject
to weight. [Emphasis added.]
(A.R., at pp. 549-51; see also, A.R., at p. 744, where he reiterates
that his inquiry is into whether the evidence is “too unreliable to be heard”.)
Thus, even at
the time of the trial, well before J.-L.J., the common law required that
the trial judge be satisfied that the evidence sought to be admitted was
sufficiently reliable to be put to the jury. After hearing five days worth of
evidence and argument during the voir dire, the trial judge so
concluded. There was no burden on the Crown at the time to “revers[e] the
presumption” of inadmissibility for hypnotically refreshed memories, as my
colleague suggests at para. 61 of her reasons. There was no such presumption
forming part of our law at the time of trial.
138
The test for assessing the reliability of scientific evidence set out
in J.-L.J. is not “new law” requiring that scientific methods,
previously accepted as legitimate by our courts, must now be resubmitted for
scrutiny under the J.-L.J. test. Many earlier cases cautioned for
scrutiny of evidence based on new scientific methods and set out factors upon
which trial judges may rely upon when assessing the reliability of such
evidence: see R. v. Medvedew (1978), 43 C.C.C. (2d) 434 (Man. C.A.), at
pp. 447-48, per O’Sullivan J.A., dissenting; R. v. Nielsen (1984),
16 C.C.C. (3d) 39 (Man. C.A.), at pp. 68-69; R. v. Melaragni
(1992), 73 C.C.C. (3d) 348 (Ont. Ct. (Gen. Div.)), at p. 353; R. v. Johnston
(1992), 69 C.C.C. (3d) 395 (Ont. Ct. (Gen. Div.)), at p. 415; R. v.
Dieffenbaugh (1993), 80 C.C.C. (3d) 97 (B.C.C.A.); R. v. J.E.T., [1994]
O.J. No. 3067 (QL) (Gen. Div.), at para. 75; and R. v. McIntosh (1997),
117 C.C.C. (3d) 385 (Ont. C.A.), at p. 394. Thus, neither R. v. Mohan,
[1994] 2 S.C.R. 9, nor J.-L.J. introduced the concept of probing
scientific evidence. In fact, it was specifically rejected in Terceira
(Ont. C.A.), that Mohan introduced a new standard for the assessment of
novel science: “the rules laid down by Sopinka J. in R. v. Mohan, supra,
do not signify a departure from the common law rules relating to the admission
of opinion evidence in a criminal trial, nor do they purport to do so” (p.
185).
139
The point of both Mohan and J.-L.J. was to emphasize
the need for courts to give special scrutiny to novel science or the new
application of a recognized science, through a case-by-case evaluation, in
light of the changing nature of our scientific knowledge (see J.-L.J.,
at para. 34). See also S. C. Hill et al., McWilliams’ Canadian Criminal
Evidence (4th ed. (loose-leaf)), vol. 1, at p. 12-34:
Although the suggestion has been made that opinion testimony involving
a novel field of expertise requires “a higher threshold of reliability” than
attaches to other expert opinion testimony, this is not the prescription of Mohan.
Closer scrutiny means a more searching investigation or examination than
normal into the reliability and validity of the science but not raising the bar
of reliability to a higher standard than the admission entry point for
non-novel science. [Emphasis added.]
J.-L.J.
was not intended, as my colleague appears to suggest, to set down a rigid
formula where the results must be proved beyond a reasonable doubt before
scientific evidence can be admitted. The factors from Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), adopted in J.-L.J.
were designed to be flexible and non-exclusive. As noted above, similar
factors to assist courts in assessing the reliability of scientific evidence
have existed at common law long before J.-L.J. was decided.
Well-established scientific methods accepted by our courts do not need to be
systematically reassessed under J.-L.J. While my colleague suggests
that not all previously accepted scientific techniques will have to be
reassessed under J.-L.J., her guidance that science which is “so well
established” (at para. 31) need not be reassessed is so vague that it opens the
door to most if not all previously accepted techniques being subject to
challenge under J.-L.J., without establishing a serious basis for the
inquiry.
140
A further concern I have about Deschamps J.’s approach to J.-L.J.
is that although she states that the standard it requires is “sufficient
reliability” (para. 33), her reasoning really reflects a standard of total
consensus by members of the scientific community. She acknowledges that
hypnosis has been the subject of significant study and peer review, as well as
testing, yet, because there is not unanimity in the scientific community on the
reliability of hypnotically refreshed memories, she would find this evidence
inadmissible. In my view, this standard is more akin to the “general
acceptance” test that this Court specifically rejected in Mohan in
favour of the Daubert “reliable foundation” test, as stated in J.-L.J.,
at para. 33:
Mohan kept the door open to novel science,
rejecting the “general acceptance” test formulated in the United States in Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923), and moving in parallel with
its replacement, the “reliable foundation” test more recently laid down by the
U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).
In the test
set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
demonstrating “general acceptance” of a theory or technique within a scientific
community was the requirement to be met, while under the Daubert
test adopted in J.-L.J., “general acceptance” is weighed as only one of
several factors to be considered. The problem with the mandatory “general
acceptance” standard in Frye has been summarized as follows:
The test does not specify what proportion of experts constitute general
acceptance. Courts have never required unanimity, and anything less than full
consensus in science can quickly resemble substantial disagreement. In fact,
the most rigorous fields with the healthiest scientific discourse might fail
the Frye test with the greatest frequency.
(D. L. Faigman et al., Modern Scientific Evidence: The Law and
Science of Expert Testimony (2005), vol. 1, at p. 9)
As this
passage demonstrates, total unanimity is impossible to obtain and therefore
completely unrealistic to expect. I fear that the high standard of reliability
my colleague champions will result in the exclusion of far too much relevant
and probative evidence.
141
Finally, I add that in order to come to the conclusion that hypnosis
evidence does not meet the criteria of general acceptance, my colleague relies
almost exclusively on the position of experts discussed in American cases.
This is not a sufficient evidentiary foundation upon which to arrive at such a
conclusion. However, this was the sole evidence the appellant advanced before
this Court in support of his argument that it should adopt a general
exclusionary rule towards hypnosis evidence. Ironically, I note that even in
the U.S. case the appellant relies upon most, State v. Moore, 852 A.2d
1073 (2004), the New Jersey Supreme Court determined that the record was
inadequate to reconsider its position on hypnotically refreshed memories and
remanded the matter to the trial court for rehearing.
142
In effect, Deschamps J. is acceding to the appellant’s invitation to
take judicial notice of what some experts have testified to in these American
cases. In R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, at paras.
48-49, this Court specifically rejected the possibility of courts ever taking
judicial notice of expert evidence:
Judicial notice dispenses with the need for proof of facts that are
clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed
are not proved by evidence under oath. Nor are they tested by cross‑examination.
Therefore, the threshold for judicial notice is strict: a court may properly
take judicial notice of facts that are either: (1) so notorious or generally
accepted as not to be the subject of debate among reasonable persons; or (2)
capable of immediate and accurate demonstration by resort to readily accessible
sources of indisputable accuracy: R. v. Potts (1982), 66 C.C.C. (2d) 219
(Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of
Evidence in Canada (2nd ed. 1999), at p. 1055.
The scientific and statistical nature of much of
the information relied upon by the appellant further complicates this case. Expert
evidence is by definition neither notorious nor capable of immediate and
accurate demonstration. This is why it must be proved through an expert
whose qualifications are accepted by the court and who is available for cross‑examination.
. . . [Emphasis added.]
143
It is especially problematic for courts to rely on expert evidence heard
in other cases. This ignores the danger that experts are often chosen to
support the position of the party presenting them. T. M. Bubela comments on
the phenomenon of partisan experts in “Expert Evidence: The Ethical
Responsibility of the Legal Profession” (2003-2004), 41 Alta. L. Rev. 853,
at p. 854:
There are many problems for the administration of
justice associated with the selection of experts and the use of expert
testimony by opposing counsel in an adversarial setting. The problems may be
grouped into two categories: substantive issues of justice and fairness, and
procedural issues related to cost and efficiency. In the former category, the
main concern is that a potential litigant will search far and wide for an
expert prepared to express an opinion consonant with the case contended for by
the client’s lawyers. Trials thus become a “battle of the experts” with a
technically untrained judge selecting between competing theories.
While the risk
of expert partisanship exists in every case, it becomes even more pronounced
when this evidence is introduced through external cases, where the expert’s
comments originate in a different factual context (see, on this point, R. v.
D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 13-14, per
McLachlin C.J.), and where the parties to the current proceeding do not have an
opportunity to test this evidence through leading contrary evidence or through
cross-examination. I would reiterate here my comments on the use of extrinsic
evidence in R. v. Sappier, [2006] 2 S.C.R. 686, 2006 SCC 54, at para.
71: “I would agree that it is generally wise not to incorporate evidence
submitted in other cases without disclosing it to the parties and allowing them
the possibility of challenging it or presenting contrary evidence.”
144
Deschamps J. would allow this ground of the appeal without a proper
evidentiary foundation, thereby depriving the Crown of the right to present
contrary evidence or to cross-examine the experts who maintain such a position.
3.1.4 The Long-Standing Admissibility Rule
for Hypnotically Refreshed Memories
145
For the near 30 years that Canadian courts have considered hypnosis
evidence, the admissibility rules applied to such evidence have been those
applied to refreshed memories: the evidence is admissible, with potential
frailties created by the means of refreshing the memory going to weight. We
find an articulation of this choice of approach in Clark, at pp. 122-23:
In principle there would appear to be nothing to
distinguish hypnotically‑refreshed testimony from testimony refreshed by
other means. Witnesses daily appear in our courts and give testimony after
having reviewed, prior to testifying, reports or notes which were made at the
time of their original observations. Indeed, we go so far as to permit
witnesses to refer to such notes during the actual process of testifying, where
we are satisfied that the notes were made sufficiently contemporaneous with the
witness’s original observation. As in the case of hypnosis, there is always a
danger that a witness's testimony may have been tainted by information supplied
by another individual. An over‑zealous policeman may allow an eye‑witness
to review a police report containing a full description of the accused. In the
case of such a witness our approach would not be to exclude his evidence;
rather, the evidence would be considered unreliable and afforded little weight.
. . .
146
To be more precise, the approach to admissibility has been closer to the
process for admitting past recollections recorded than present memory refreshed
(our courts have not always distinguished between the two — see Stewart, at p.
78). For refreshed memories to be admissible, the stimulus for recovering the
memory itself need not be admissible: this was recently reaffirmed in R. v.
Fliss, [2002] 1 S.C.R. 535, 2002 SCC 16, at para. 45. However, for past
recollection recorded evidence to be admissible, conditions are imposed upon
the past record used to refresh memory to ensure that it meets certain
circumstantial guarantees of reliability: see R. v. Meddoui (1990), 61
C.C.C. (3d) 345 (Alta. C.A.), at p. 352, per Kerans J.A., and Fliss,
at paras. 63-64. Similarly, Canadian courts have rarely found
hypnotically refreshed memories admissible per se, but instead have held
voir dires to assess whether such evidence is sufficiently reliable. As
earlier noted, compliance with the Clark guidelines has been seen as an
important, though not the exclusive, condition of admissibility.
3.1.5 Insufficient Evidentiary Record to
Challenge the Rule
147
I note that the appellant did not challenge the admissibility rule at
the time of the trial, but rather tried to show that Ms. Haghnegahdar’s
evidence was not sufficiently reliable to be admitted by calling experts to
testify as to potential problems with adhering to the Clark guidelines
and other issues, such as pre- and post-hypnotic suggestion, confabulation,
etc. It is only before this Court and the Court of Appeal that Mr. Trochym
sought to challenge the long-standing admissibility rule. In order to properly
challenge such a rule, however, he was required to present direct expert
evidence on why the rule should no longer be accepted, not just some academic
commentary supporting this position. No such evidence was presented. I have
serious reservations about courts conducting personal research — and forming
conclusions on the basis of such research — in areas that require expertise,
like the sciences.
148
The sole evidence the appellant advanced before this Court on the
hypnosis issue was a handful of American cases in which the courts have opted
for categorical exclusion. This is not a sufficient evidentiary foundation
upon which this Court should overturn a long-standing Canadian common law rule.
3.1.6 Concerns Raised Regarding Hypnosis Are
Not New Nor Insurmountable
149
The concerns my colleague raises are not new and have been taken into
account by trial judges in virtually every voir dire held to determine
the admissibility of hypnotically refreshed memories.
150
A review of Canadian hypnotically refreshed evidence cases reveals that
when trial judges consider the admissibility of hypnosis evidence, they hear
about the divergent opinions on the use of forensic hypnosis in the scientific
community, including concerns regarding the dangers associated with hypnosis,
such as suggestibility, confabulation and memory hardening, and they take these
into consideration when deciding whether to admit the specific evidence. See,
for example: Clark, at pp. 120-21; Sanchez‑Flores, at
paras. 24‑25; Gauld, at paras. 16‑23; Savoy, at paras.
16‑18; and Baltovich, at para. 55. At paragraph 60 of Baltovich,
the Ontario Court of Appeal noted:
The dangers referred to . . . are well documented.
As previously mentioned, these dangers have been identified as confabulation,
susceptibility to suggestion and memory hardening. Expert testimony on the voir
dire alerted the trial judge to those dangers and he considered them in
arriving at his decision to admit [the witness’s] post‑hypnosis evidence.
151
In the case at bar, the trial judge was similarly alerted to these
potential dangers by Drs. Pollock and Yarmey. He was empowered to exclude the
evidence if he found hypnosis rendered the evidence of Ms. Haghnegahdar
insufficiently reliable to go to the jury. However, having found substantial
compliance with the Clark guidelines, as well as having been shown,
through the Crown’s cross‑examination, that the concerns raised by the
defence experts were not live ones with respect to Ms. Haghnegahdar’s evidence,
the trial judge ruled the evidence admissible.
152
The standard for admissibility applied by the trial judge was sufficient
reliability and not reliability beyond a reasonable doubt. McCombs J. was
under no illusion that hypnosis would guarantee the truth of Ms. Haghnegahdar’s
evidence. He recognized that if done properly and without suggestion,
hypnotically refreshed memories could only be as reliable as regular memory
(A.R., at p. 30). In my view, it would be unreasonable to expect hypnotically
refreshed memories to be more reliable than regular memories. My colleague has
concerns about the reliability of hypnotically refreshed memories because they
are not immune to external sources of suggestion and because there is no
guarantee that such memories are likely to be either accurate or inaccurate
(para. 55). However, the same is true of all memory. A witness who testifies
from ordinary memory a year and a half after seeing a crime, may inadvertently
incorporate facts he gleaned from the media or others into their recall. There
is no guarantee with respect to the accuracy of such ordinary memories either.
Judges know these risks, yet we do not deem such evidence inadmissible. These
sorts of potential frailties with memory, whether ordinary or hypnotically
refreshed, are those that we have always assumed juries are quite capable of
weighing. As mentioned in para. 114, appellate courts must have faith in the
intelligence and common sense of juries and in the ability of trial judges to
properly charge them.
153
Furthermore, I note that the one source of potential suggestion my
colleague flags in the instant case was raised and considered at the voir
dire. Looking at the transcript of Ms. Haghnegahdar’s second interview
with police as a whole, the trial judge did not see any influence exerted by
police in their questioning. As well, the assumption that police wanted Ms.
Haghnegahdar to choose Wednesday over Thursday at such an early point in their
investigation, when neither the time of the murder had been established
conclusively, nor had Mr. Raymer and Ms. Humenick given their statements
regarding the Wednesday, is not a reasonable one, in my view. The trial judge
also doubted the likelihood of influence on this point because the sighting
itself, not the day on which it occurred, was what was crucial to police (see
Ruling re Hypnosis, A.R., at p. 19).
154
Finally, the problem my colleague raises with regard to cross-examining
a witness whose memory has been refreshed through hypnosis — the impossibility
of challenging the veracity of their memory — also arises in the context of a
witness whose evidence is presented through past recollections recorded (see R.
v. Holmes (1989), 99 A.R. 106 (Q.B.)). However, this has not provoked
courts to categorically exclude such evidence. Courts have been satisfied by
the fact that witnesses can be cross-examined about how their memories were
recalled, the circumstances surrounding the recall and prior inconsistent
statements (P. M. Perell, “Proof of an Event of which a Witness Has No Memory”
(2003), 26 Advocates’ Q. 95, at pp. 100-101). I see no reason why the
situation should be any different for hypnotically refreshed memories.
3.1.7 Problems With Excluding Testimony on
Subjects Covered by Hypnosis
155
Though it may not be necessary to deal here with the constitutionality
of prohibiting an accused from testifying freely at his or her own trial, which
would be the result of the approach taken by Deschamps J., and constitutes a
matter discussed in Rock v. Arkansas, 483 U.S. 44 (1987), by the Supreme
Court of the United States, it is obvious that this issue is very serious; the
decision to prohibit all testimony that has been the subject of hypnotic
enhancement is a matter that cannot be resolved without consideration of the
dangers posed. Without even considering the constitutional issue, I am of the
view that limiting Ms. Haghnegahdar’s right to testify is not a satisfactory
solution in this case, because this means that she will be unable to testify at
retrial about seeing the accused coming out of Ms. Hunter’s apartment at a time
when forensics determined Ms. Hunter would have already been dead, but before
her body was discovered by authorities. This is highly probative evidence for
the Crown’s case as it supports the “staging” argument, contradicts the
appellant’s testimony that he never went back to the apartment and, at the very
least, signifies that he knew she had been brutally murdered and yet took no
action.
156
The only aspect of this testimony that was refreshed through
hypnosis was the day the sighting occurred. However, as noted by the
trial judge (A.R., at pp. 18-19), whether the sighting occurred on the
Wednesday or Thursday does not change the significance of the evidence.
Therefore, to exclude all of the evidence when only this point was clarified
through hypnosis, strikes me as an inflexible and disproportionate solution.
The goal of the court process is truth seeking, and a just result is best
achieved when all relevant and probative evidence is put before the jury: L.
(D.O.), at pp. 454-55.
3.1.8 The Agreement Between Counsel Was
Proper
157
I cannot agree that it was inappropriate for the trial judge to permit
this agreement. It is argued that the impetus for the agreement between
the defence and the Crown not to put the issue of Ms. Haghnegahdar’s hypnosis
before the jury was a concern by defence counsel that members of the jury might
view hypnotically enhanced memories as infallible. As framed, this suggests
that defence counsel’s concern was that the jury would have heard that Ms.
Haghnegahdar’s memories had been refreshed by hypnosis and would have automatically
and uncritically accepted these as true.
158
As I read the record of the discussions between defence and Crown
counsel and the trial judge on this issue, there were two concerns motivating
the defence to strike this deal, and these were strictly tactical and
not born out of some fear that the jury would uncritically accept the hypnosis
evidence. The first appears to have been about the time it would take to put
such evidence before the jury. Second, and relatedly, was a realization that
the hypnosis evidence was quite credible and, if the jury were told that it was
hypnosis evidence, they would be even more likely to believe Ms. Haghnegahdar.
This can be seen in the following exchange between defence counsel and the
trial judge:
THE COURT: I concluded, after viewing it all, that it was
credible evidence and should be heard by the jury. The jury may disagree with
me, but, frankly, if you want my own opinion of how the jury will react to it,
it’s my opinion that it’s only going to strengthen the Crown’s case if they
hear all about the hypnosis.
[DEFENCE]: Well, quite frankly, you know, sir, that was part of
my consideration when considering the matter from our end. . . .
(A.R., at p. 1464)
In the face of
this admission by defence counsel that it would be more beneficial to its case
to withhold all of the expert evidence about hypnosis from the jury rather than
having the jury hear and critically assess it, the argument that this agreement
may have caused significant prejudice to the accused, and even jeopardized his
rights under s. 7 of the Canadian Charter of Rights and Freedoms ,
is gratuitously expedient. Courts should not readily permit an appellant to
reverse tactical decisions on appeal: see Terceira (Ont. C.A.), at
pp. 207-8.
159
Furthermore, there was precedent presented to the trial judge of similar
agreements having been reached in other criminal cases. In fact, defence
counsel informed the trial judge that he had formed a similar agreement with
Crown in a previous case. Thus, at the time counsel proposed this agreement,
there was nothing in the law to suggest to the trial judge that such an
agreement was inappropriate. Generally, I am of the view that juries should be
informed of efforts to enhance memory, as they are quite capable of assessing
this evidence and giving it proper weight. However, there is no absolute rule
on this point, and agreements between counsel should be respected where no
prejudice is shown to have been caused to a party.
3.1.9 Conclusion on Hypnotically Refreshed
Evidence
160
Perhaps a better evidentiary foundation in a future case may demonstrate
that it is time for Canadian courts to reconsider the long-standing
admissibility rule for hypnotically refreshed memories. That decision cannot
be made in this case. For now, I would simply caution our courts not to
encourage the practice of forensic hypnosis until better evidence is available
regarding its value. However, I have not been persuaded at this point, on this
record, that a complete exclusion of such evidence in all cases is appropriate,
as this could deprive the trier of fact from hearing relevant, probative, and
even sometimes critical evidence, to either the Crown’s or defence’s case in
some instances. In my view, the admissibility of such evidence should always
be made on a case-by-case basis. Here, the evidence was highly relevant to the
Crown’s case and shown to be quite credible. In my view, the trial judge made
no legal error in admitting it.
3.2 Post-Offence Conduct
161
Post-offence conduct is one type of circumstantial evidence. It is not
fundamentally different from other kinds of circumstantial evidence: White,
at para. 21. It can take various forms: what the accused said to others or the
police; what the accused did not say to others or the police; what the accused
did; what the accused did not do; and how the accused seemed to others (i.e.,
demeanor evidence). It can also be used for various purposes: to support
inferences of consciousness of guilt or even to support inferences of innocence
(see R. v. B. (S.C.) (1997), 36 O.R. (3d) 516 (C.A.)); to connect the
accused to the scene of the crime or to a piece of physical evidence; or to
undermine the credibility of the accused in general (White, at para.
26).
162
When used to support inferences of consciousness of guilt, no special
rules of admissibility apply apart from the rules that apply to all evidence
generally. The evidence is admissible as long as its probative value outweighs
its prejudicial effect; there is no special exclusionary rule applicable: R.
v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.). There is no separate
burden of proof for such evidence: White and R. v. Ménard,
[1998] 2 S.C.R. 109, at para. 23.
163
This Court has recognized, however, that evidence of post-offence
conduct introduced to support an inference of consciousness of guilt can be
highly ambiguous and susceptible to jury error: White, at para. 22. The
danger exists that a jury may erroneously leap from such evidence to a
conclusion of guilt: R. v. Arcangioli, [1994] 1 S.C.R. 129. The
solution to this potential problem chosen by this Court has been to require the
trial judge to properly instruct the jury as to the use of this evidence: White,
at para. 23. The choice of this solution is grounded in respect for the role
of the jury in criminal trials:
As a general rule, it will be for the jury to
decide, on the basis of the evidence as a whole, whether the post‑offence
conduct of the accused is related to the crime before them rather than to some
other culpable act. It is also within the province of the jury to consider how
much weight, if any, such evidence should be accorded in the final
determination of guilt or innocence. For the trial judge to interfere in
that process will in most cases constitute a usurpation of the jury’s exclusive
fact‑finding role. [Emphasis added.]
(White, at para. 27)
164
That said, there has been growing concern with respect to the use of
demeanor evidence to support inferences of consciousness of guilt because of
the highly subjective nature of such evidence: see R. v. Levert (2001),
159 C.C.C. (3d) 71 (Ont. C.A.); R. v. Bennett (2003), 179 C.C.C.
(3d) 244 (Ont. C.A.); and R. v. Stark (2004), 190 C.C.C. (3d) 496
(Ont. C.A.). A higher level of intervention on the part of the trial judge may
be called for, given the potential for this sort of evidence to be quite
prejudicial. However, I would avoid making a general pronouncement about the
admissibility of this type of evidence. A case-by-case assessment of such
evidence, considering relevance and weighing probative value against the
prejudicial effect, is the proper approach. In the case at bar, while there
was some evidence led regarding the appellant’s unemotional demeanor when
speaking about Ms. Hunter’s murder to police and her friends, the vast majority
of the post-offence conduct presented at trial was not demeanor evidence, and
its admission did not impact trial fairness.
165
I turn now to consider the specific post-offence evidence challenged in
this case.
3.2.1 Mr. Trochym’s Failure To Attend the
Funeral, etc.
166
I find that this evidence was properly admissible and that the Crown was
entitled to argue that it demonstrated a consciousness of guilt on Mr.
Trochym’s part. I find that the trial judge’s instructions to the jury
regarding this evidence was sufficient to deal with its potential prejudicial
effect. After saying “It is for you to determine what, if any, inference you
wish to draw from those facts”, the trial judge goes on to say:
Remember, you have been given an explanation of
them by Mr. Trochym. Even if you do not accept it, you must consider whether
the evidence is proof of guilt or anxiety out of the realization he was a
suspect or they thought he was guilty because he is the boyfriend, and that’s
the reason he did what he did. It is for you to determine the weight to be
given to that evidence.
(A.R., at p. 3740)
Clearly, this
imparts a sufficient warning that this evidence should be approached with
caution and that other inferences, aside from consciousness of guilt, can be
drawn from this conduct. I agree with MacPherson J.A. in the Court of Appeal
below that the trial judge’s charge regarding this evidence was “careful,
balanced and fair” (para. 27).
3.2.2 The “Darts and Haircut” Comment
167
A few days following his first interview with police, when phoned by
Detective Clarke for a second meeting, Mr. Trochym declined two proposed
meeting times because the first one would interfere with his darts league game
and the second one with a haircut appointment. The Crown sought to use this
statement to contradict Mr. Trochym’s earlier statement to police that he was
anxious to help them in their investigation. From this, the Crown advanced the
argument that Mr. Trochym only made the earlier statement in order to cast
suspicion away from himself. The defence argued that Mr. Trochym made the
darts and haircut comments as a stalling tactic while his brother was trying to
arrange an appointment for him with a lawyer. After a voir dire, the
trial judge permitted the evidence as long as the jury was informed that the
comments were made after a member of Mr. Trochym’s family was in touch with a
lawyer and that the day following the comments, police were informed that he
had retained counsel and was exercising the right to silence. However, during
his charge, the trial judge instructed the jury not to draw any adverse
inference against Mr. Trochym because it may well have been his intention to
see a lawyer, and that is a right that every person has.
168
That a jury may have been inclined to think Mr. Trochym callous, or even
a “monster” for making such a comment, as noted by the trial judge, does not
render this evidence prejudicial. The real issue with this evidence is whether
it should have been excluded in light of the right to silence. This Court has
held that drawing inferences of consciousness of guilt from an accused’s
silence in the face of police questioning is in violation of this right: R.
v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50. In that case, the accused
went to a police station and asked that a car be sent to the ranch where he
lived, but he refused to explain why a car was necessary or what would be found
there. Police found three bodies at the scene. This Court held that no
inferences of consciousness of guilt could be drawn from Mr. Turcotte’s refusal
to explain his request, as he was exercising his right to silence.
169
When discussing a person’s right to silence, there is an important
distinction to draw between when a person voluntarily chooses to speak to
police and when that person chooses not to speak. It is perhaps trite to say,
but the right to silence prevents inferences of consciousness of guilt from
being drawn from a person’s choice to remain silent, not inferences of
consciousness of guilt from something a person voluntarily says.
170
I say this while fully aware that the first major cases on the right to
silence involved instances where suspects gave confessions and these were found
inadmissible: Rothman v. The Queen, [1981] 1 S.C.R. 640, and R. v.
Hebert, [1990] 2 S.C.R. 151. In these cases, detained suspects were
tricked into giving confessions by undercover police officers placed in their
midst. On this basis, their right to choose to remain silent was illusory.
However, absent evidence that the statements were improperly elicited by
authorities, an accused’s statements may be used against them. Authority for
this can be found in the comments of McLachlin J. (as she then was) in
Hebert, at p. 185, where she states: “in the absence of eliciting behaviour
on the part of the police, there is no violation of the accused’s right to
choose whether or not to speak to the police. If the suspect speaks, it is
by his or her own choice, and he or she must be taken to have accepted the risk
that the recipient may inform the police” (emphasis added).
171
In the case at bar, although he later exercised the right to counsel and
the right to silence, Mr. Trochym chose to tell the police that he wanted to
help them in their investigation and then later chose to tell them that he
could not attend a follow-up meeting on account of darts and a haircut. He
took the risks in making these comments and they can therefore be used against
him. The trial judge made no error of law in admitting this evidence. His
charge to the jury to give this evidence no weight was unnecessary, but it was
within his discretion to do so.
3.2.3 False Alibi
172
The Crown is entitled to argue false alibi to infer consciousness of guilt
where there is evidence of concoction or fabrication of the alibi adduced
independently from evidence adduced to show that the alibi may be disbelieved: R.
v. Hibbert, [2002] 2 S.C.R. 445, 2002 SCC 39, at paras. 59 and 67.
173
There was evidence produced by the Crown showing that Mr. Trochym would
have had the opportunity to sneak out of his work area on the afternoon of
Wednesday, October 14, that it was possible that someone else could have logged
into the computer network using his password, and that none of his co-workers
could definitively recall seeing him at work between 1:00 p.m. and 3:00 p.m.
Such evidence might only go so far as to disprove the appellant’s alibi.
However, the placing of Mr. Trochym at Ms. Hunter’s apartment building
between 1:00 p.m. and 3:00 p.m. by three eye-witnesses and the testimony of the
Canada Post security guard who saw Mr. Trochym hanging around the
cafeteria after his shift, was independent evidence to support that he
deliberately concocted an alibi in order to conceal his return to the scene of
the crime.
174
I agree with MacPherson J.A. that characterizing this evidence as “alibi
evidence”, as the appellant sought to do, may be a bit of a misnomer for the
events being considered are not events that occurred at the time of the murder
but, rather, took place more than 12 hours later (p. 623, note 5). MacPherson
J.A. nonetheless undertook an “alibi” analysis of this evidence since the trial
judge and parties presented it as such. However, even characterizing this as
“alibi evidence”, it is clear that there was independent evidence of concoction
presented for the Crown to make the argument.
175
On the issue of the sufficiency of the trial judge’s instructions to the
jury on this point, I agree with MacPherson J.A. that his charge was
comprehensive and sound in explaining how this evidence was to be used.
Further, he expressly advised the jury not to draw inferences based on
“speculation or hunches” and, it is important to note, counsel made no
objection to the charge. It is not wise for appellate courts to second-guess
trial judges on their charges unless there is clearly a major problem with the
directions to the jury. This was not the case here.
3.3 Cross-Examination
176
The right to cross-examination is a fundamental truth-seeking element of
the criminal trial:
Cross-examination
may often be futile and sometimes prove fatal, but it remains nonetheless a
faithful friend in the pursuit of justice and an indispensable ally in the
search for truth. At times, there will be no other way to expose
falsehoods, to rectify error, to correct distortion or to elicit vital
information that would otherwise remain forever concealed. [Emphasis in
original.]
(R. v. Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5, at para. 1)
This Court has
gone so far as to find the right to cross-examination constitutionally
protected: R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 606-8.
177
While the majority of this Court’s jurisprudence on the importance of
the right to cross-examination focusses on its importance vis-à-vis the
defence, its importance to the Crown should not be underestimated:
Crown counsel is entitled, indeed, in some cases expected, to conduct a
vigorous cross‑examination of an accused. Effective cross‑examination
of an accused serves the truth‑finding function as much as does effective
cross‑examination of a complainant.
(R. v. R. (A.J.) (1994), 94 C.C.C. (3d) 168 (Ont. C.A.), at p.
176)
178
The general rules regarding the proper conduct of cross-examinations
were discussed by this Court in Lyttle, at para. 44:
The right of cross‑examination must therefore
be jealously protected and broadly construed. But it must not be abused.
Counsel are bound by the rules of relevancy and barred from resorting to
harassment, misrepresentation, repetitiousness or, more generally, from putting
questions whose prejudicial effect outweighs their probative value. See R.
v. Meddoui, [1991] 3 S.C.R. 320; R. v. Logiacco (1984), 11 C.C.C.
(3d) 374 (Ont. C.A.); R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont.
C.A.); Osolin, [[1993] 4 S.C.R. 595].
MacPherson
J.A. did not find that Crown counsel’s tone throughout cross-examination was
patronizing, sarcastic, mocking or editorial. He noted that defence counsel
only once objected during the cross-examination that the Crown’s tone was
“argumentative”. Overall, he found the Crown cross-examination “detailed and
vigorous” (para. 59). I agree.
179
Two separate concerns with the propriety of the Crown’s
cross-examination were raised in this case. First, with regard to the false
alibi evidence, it is argued that the Crown should not put suggestions to the
accused in cross-examination unless it has reasonable grounds for believing
that the suggestions are true. This is contrary to this Court’s position in Lyttle,
where it was held that all that is needed in order to put a question to a
witness on cross-examination is a “good faith basis” (see para. 47). This
standard was described as follows:
In this context, a “good faith basis” is a function
of the information available to the cross-examiner, his or her belief in its
likely accuracy, and the purpose for which it is used. Information falling
short of admissible evidence may be put to the witness. In fact, the
information may be incomplete or uncertain, provided the cross-examiner does
not put suggestions to the witness recklessly or that he or she knows to be
false. The cross-examiner may pursue any hypothesis that is honestly advanced
on the strength of reasonable inference, experience or intuition. The purpose
of the question must be consistent with the lawyer's role as an officer of the
court: to suggest what counsel genuinely thinks possible on known facts or
reasonable assumptions is in our view permissible; to assert or to imply in a
manner that is calculated to mislead is in our view improper and prohibited.
(Lyttle, at para. 48)
In light of my
comments above regarding the presence of independent evidence of concoction, I
find that the Crown’s cross-examination on this issue to have met this
standard.
180
The second impropriety the Crown’s cross-examination pointed to is the
compilation of “the list”. Crown counsel went through the evidence of many of
the Crown witnesses who testified to points that were central to the Crown’s
case. Mr. Trochym was asked whether he disagreed with their evidence on
these points. Crown counsel asked Mr. Trochym to write down the names of the
witness he indicated disagreement with. There were 28 names in total on this
list. Defence counsel did not object to the making of this list. He only
asked that the physical list itself not be made an exhibit. The trial judge
permitted the list, on the reassurance that it would not distract Mr. Trochym
during the course of his cross-examination.
181
Like MacPherson J.A., I see nothing wrong with such a tactic. While
there is a long line of jurisprudence prohibiting the Crown from asking the
accused to attest to the veracity of other witnesses (see, for example: Markadonis
v. The King, [1935] S.C.R. 657; R. v. Yakeleya (1985), 46 C.R. (3d)
282 (Ont. C.A.); R. (A.J.); R. v. W.J.M. (1995), 82 O.A.C. 130;
and R. v. Ellard (2003), 172 C.C.C. (3d) 28, 2003 BCCA 68), this is
quite different from putting a set of facts to an accused and asking him or her
to confirm whether they are accurate or not (see S. Akhtar, “Improprieties in
Cross-Examination” (2004), 15 C.R. (6th) 236). In R. v. White (1999),
132 C.C.C. (3d) 373 (Ont. C.A.), at para. 12, the following exchange occurred
between the Crown and the accused:
Q. You say May couldn’t have happened, didn’t happen, you never
showed up drunk in May, you never frightened her child, all of that is either a
lie or a figment of her imagination in some fashion.
A. That’s correct.
The Ontario
Court of Appeal said that nothing improper had occurred:
This question was a reference to an event which the
complainant said occurred in May, about two months before the alleged assault.
According to her, the appellant arrived at her home one evening in a drunken
state. He inadvertently frightened her son when he entered the complainant's
bedroom. The appellant testified in‑chief that the event did not happen.
Crown counsel’s question was not improper. He did
not ask the appellant to explain why some other witness had lied. Rather, the
Crown asked the appellant to confirm his position that the May incident had
never occurred. There was evidence, independent of the complainant, suggesting
that the event had in fact occurred. Crown counsel wanted to pin down the
appellant on his position in the hope that the jury would accept the
independent evidence and find that the May incident did occur. If they made
that finding, they would have to conclude that the appellant had lied to them
on that issue. A finding that the appellant lied on that point could undermine
his overall credibility. [paras. 13-14]
Mr. Trochym’s
version of events on examination-in-chief was vastly different from that of
several other witnesses on several key issues in the case, such as the nature
of his relationship with Ms. Hunter, the events of October 13, his whereabouts
on October 14, as well as about the day he was told of her death by a family
member. Crown counsel was entitled to confirm Mr. Trochym’s position on the
events that occurred, and it chose to keep track of the extent of the appellant’s
disagreement with other witnesses by asking him to keep a list. Mr. Trochym
had experienced counsel, who could have objected to the list, but did not, and
deference is due to the decision of the trial judge to permit its use.
3.4 Closing Submissions
182
Crown counsel is entitled to employ logic and rhetoric to present
persuasive argument during a jury address. There are, of course, limits to
this.
183
I note, in particular, the limit discussed by this Court in R. v.
Rose, [1998] 3 S.C.R. 262, which is the duty of counsel not to play fast
and loose with the facts: “Counsel should not advert to any unproven facts and
cannot put before the jury as facts to be considered for conviction assertions
in relation to which there is no evidence or which come from counsel’s personal
observations or experiences” (para. 107). In R. v. P. (M.B.), [1994] 1
S.C.R. 555, at p. 580, Lamer C.J. described the parties as “locked into” the
case presented at trial. In view of this limit, I have difficulty with my
colleague’s reproach of the Crown’s submission regarding Ms. Haghnegahdar’s
testimony. The facts emphasized in the Crown’s address were those presented at
trial. Counsel had agreed not to present the evidence of Ms. Haghnegahdar’s hypnosis
at trial. On the witness stand, Ms. Haghnegahdar testified to seeing the
witness on Wednesday; her previous confusion was not mentioned. Referring to
her evidence in any other fashion than Crown counsel did would have potentially
brought up the hypnosis, and not emphasizing this witness’s sighting of the
accused, which was crucial evidence to the Crown’s case, would have been poor
advocacy.
184
Other limits on the Crown’s closing submissions include the prohibition
of the Crown employing sarcasm, abuse or gross exaggeration to add a desirable
rhetorical flourish to a jury address (see R. J. Frater, “The Seven Deadly
Prosecutorial Sins” (2002), 7 Can. Crim. L.R. 209, at p. 213).
MacPherson J.A. identified some exaggeration on the part of the Crown in its
submissions, but did not think it affected the jury. I agree. As well, I note
that the trial judge had discretion to intervene where he thought Crown counsel
had overstepped its bounds. I emphasize again, absent a substantial wrong,
deference should be shown to the trial judge’s handling of this case.
3.5 Similar Fact Evidence
185
I agree with the majority that the trial judge erred on this point. The
evidence of Darlene Oliphant was advanced to support that it was Mr. Trochym
banging on Ms. Hunter’s door in the early morning hours of Wednesday,
October 14. The person banging on the door was likely the murderer.
Therefore, this similar fact evidence was adduced on the issue of identity.
186
In R. v. Arp, [1998] 3 S.C.R. 339, this Court held that similar
fact evidence adduced on the issue of identity must meet a high degree of
similarity between the acts for the evidence to be admitted. Such acts must be
“strikingly similar” so as to approximate “a unique trademark” or “signature”,
or be “distinct and particular”: Arp, at para. 45, and R. v. Handy,
[2002] 2 S.C.R. 908, 2002 SCC 56, at paras. 90-91.
187
It would be a stretch, in my view, to characterize Mr. Trochym’s
emotional reaction following a break up, based on Ms. Oliphant’s evidence, as a
“signature” or “trademark”. There is nothing particularly distinctive about
banging or knocking on a door to warrant its characterization as a
“trademark”. As well, the number of these incidents renders them insufficient
to support such a determination.
188
Furthermore, I find that this evidence was not necessary to the Crown’s
case. A great deal of evidence supporting that Mr. Trochym was the person
knocking at Ms. Hunter’s door that night was adduced at trial. Whether
the Crown can prove its point with less prejudicial evidence is one of the
countervailing factors identified by Binnie J. in Handy, at para. 83,
that assist in assessing whether similar fact evidence should be admitted.
189
While I think the admission of this evidence was in error, excluding it
would not have changed the outcome of the case.
3.6 Application of the Curative Proviso
190
In light of my finding that the only error committed by the trial judge,
i.e., permitting the similar fact evidence to go to the jury, would not have
changed the result in this case, I would apply s. 686(1) (b)(iii) of the Criminal
Code, R.S.C. 1985, c. C-46 . Absent the similar fact accepted in evidence,
there was still sufficient evidence to support the inference that Mr. Trochym
was the person banging on Ms. Hunter’s door the night of her death. But more
importantly, I do not think that there is any reasonable possibility that the
verdict would have been different without the error: R. v. Bevan, [1993]
2 S.C.R. 599, and R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53. I
would add that I disagree with the assertion by Deschamps J., at para. 82, that
the standard required for application of the curative proviso is higher than
that required for a conviction, and I know of no authority supporting that
proposition.
191
Indeed, in my view the evidence against Mr. Trochym was so overwhelming
that I have no hesitation applying R. v. Khan, [2001] 3 S.C.R. 823,
2001 SCC 86. Even excluding the hypnotically enhanced memories of Ms.
Haghnegahdar of seeing the appellant leaving Ms. Hunter’s apartment on
Wednesday, as my colleague proposes to do, leaves us with her initial evidence
of seeing him on Thursday — a time when her murdered body was inside the
apartment. Furthermore, Mr. Trochym had motive and the opportunity to murder
Ms. Hunter, and a stranger would not have returned to rearrange the crime scene
and move the body. He also seems to have known the means of her death before an
innocent party could. Moreover, Mr. Trochym’s version of events on key issues
was contradicted by more than half of the more than 40 Crown witnesses who
testified. Even excluding all of the impugned evidence, as my colleague would,
we are still left with a great deal of highly probative evidence in support of
the Crown’s case.
192
I would therefore dismiss the appeal.
Appeal allowed, Bastarache, Abella and Rothstein
JJ. dissenting.
Solicitors for the appellant: Lockyer Campbell Posner,
Toronto.
Solicitor for the respondent: Attorney General of Ontario,
Toronto.