The Defence Toolkit – March 22, 2025: Trauma Psychology

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Experts | Probative v Prejudicial

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Posted On 22 March 2025

This week’s top three summaries: R v PJC, 2025 ONCA 196: #trauma psychology, R v DeSutter, 2025 NSCA 18, #sexual images relevance, R v SK, 2025 ONCA 149: #sexual assault motives

R v PJC, 2025 ONCA 196

[March 12, 2025] Expert Evidence: Psychology About Presentation “Consistent” with Trauma [Reasons by Rouleau J.A. with L.B. Roberts and L. Favreau JJ.A concurring]

AUTHOR’S NOTE: Expert psychological evidence often tries to introduce specialized knowledge into criminal cases, particularly in areas the justice system regularly deals with, such as memory and trauma. Recently, “trauma-informed” approaches have gained traction in legal education and judicial circles.

In this case, an expert was allowed at trial to testify about the “neurobiology of trauma,” including dissociative amnesia and recovered memories, to explain a witness’s behavior. However, the Court of Appeal found this evidence to be unnecessary and prejudicial, ultimately excluding it. The ruling reinforces that such evidence often serves as oath-helping—bolstering a complainant’s credibility under the guise of science—rather than providing genuinely necessary expertise. The decision serves as a strong precedent for challenging similar expert testimony in future cases.

[1] The appellant was convicted of assaulting his three young stepchildren and sexually assaulting one of them between 1999 and 2001. He appeals his convictions and his sentence of 10 years’ imprisonment. The sole issue on the conviction appeal is whether the trial judge erred in admitting the evidence of Dr. Lori Haskell, an expert witness who testified on the neurobiology of trauma and its effects on memory.

A. FACTS

(1) Evidence of Dr. Lori Haskell

[5] The Crown’s first witness at trial was Dr. Lori Haskell, a clinical psychologist. She was qualified to give expert opinion evidence on the neurobiology of trauma – including the encoding, storage, and retrieval of memories – the impact of trauma on memory, dissociative amnesia and trauma, recovered memories, and factors that diminish or enhance memories of traumatic events.

[6] The stated purpose of Dr. Haskell’s evidence was to provide a biological explanation for how people recall traumatic events, with particular focus on childhood sexual assault. The appellant’s trial counsel (not Ms. Hansell) took no issue with Dr. Haskell’s expertise, and the parties agreed to the trial proceeding as a blended voir dire and trial. Following Dr. Haskell’s testimony in chief, the defence cross-examined her, and the parties made submissions about the admissibility of her evidence at the conclusion of the trial.

(a) Dr. Haskell’s report

[7] Dr. Haskell did not interview the complainants. Rather, in preparing her opinion evidence, she reviewed transcripts of the complainants’ testimony at the preliminary inquiry as well as transcripts of their police interviews. Dr. Haskell then authored a report for the Crown, which was entered as a lettered exhibit on the voir dire. The Crown characterized this report as “an aid” to the trial judge in following Dr. Haskell’s evidence. As a lettered exhibit, this report does not constitute evidence. It does, however, form part of the trial record for appeal purposes and, as such, it can inform this court’s understanding of how Dr. Haskell’s evidence was proffered to support the Crown’s case at trial: Wasylyk v. Simcoe (County), 2023 ONCA 473, at para. 10.

[8] In that report, Dr. Haskell analyzes various portions of the complainants’ interviews and testimony and describes them as being consistent with how victims of childhood trauma would remember traumatic events…

…The report notes that, “when asked by the detective whether the accused ejaculated, [E.M.] responds that she doesn’t remember.” Dr. Haskell goes on to explain that the “concept of ejaculation is not something a child of age seven can be expected to understand … [E.M.]’s failure to remember whether the accused ejaculated or not is an example of impaired semantic encoding,…

(b) Evidence on the voir dire

[9] Dr. Haskell gave evidence about how the trauma of sexual assault can be expected to impact a child’s memory of that event. She described the difference in how people encode, store, and retrieve central versus peripheral details of events in general, and of traumatic events in particular. Traumatic experiences, she said, are encoded as intense fragments rather than in chronological sequence, and how an individual encodes that memory also depends on their age and level of comprehension. Victims of childhood sexual assault, she explained, can be expected to have gaps in their memory and give accounts with inconsistencies in respect of peripheral details. They may also go for a period of time without being able to recall traumatic experiences or may not allow themselves to reflect or call upon those memories.

[10] Additionally, Dr. Haskell testified about “dissociative amnesia”, a phenomenon where a gap in memory is caused by an individual detaching from reality to cope with a traumatic event.

[11] …However, as I will discuss further below, the features of the complainants’ pre-trial evidence on which Dr. Haskell focused were subsequently led as evidence at trial when they were elicited by the Crown in its examination of the complainants.

(c) The hypotheticals

[12] During the voir dire, the Crown put a series of questions to Dr. Haskell based on purportedly hypothetical situations. Although these each referenced a hypothetical child, they incorporated distinctive features of the complainants’ evidence that Dr. Haskell had already analyzed in her report. As noted above, these were features that the Crown subsequently elicited on direct examination of the complainants.

(2) The complainants’ evidence

[17] The appellant denied these allegations. He testified that he could not recall a time when he was alone with the children in a bedroom, and that he never saw E.M. naked.

(3) The trial judge’s decisions

(a) Admissibility of Dr. Haskell’s expert evidence

[18]…The trial judge also found that Dr. Haskell’s evidence did not violate any exclusionary rule as she did not opine inappropriately on the credibility of the complainants.

(b) Reasons for conviction

[20] …With respect to how she applied it, the trial judge explained that:

[W]hile Dr. Haskell’s evidence provides the court with relevant and helpful information and puts the evidence of the complainants in context, it is only one factor, and a minor one at that, that I consider when reaching my ultimate conclusion given the circumstances in this case for the reasons that will become evident as I assess the evidence of the complainants.

C. ANALYSIS

(1) The law

[25] The law regarding the admission of expert evidence is well settled. Expert evidence is presumptively inadmissible. To be admitted, the proponent must satisfy the four threshold requirements of admissibility: relevance, necessity, absence of other exclusionary rules, and expert qualification. If these requirements are met, the trial judge must then conduct a cost-benefit analysis, balancing the probative value of the evidence against its prejudicial effect: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19, 21-24.

(3) Discussion

[29] In my view, Dr. Haskell’s expert evidence ought not to have been admitted. As I will explain, it did not meet the necessity requirement for the admission of expert evidence. Further, the way in which it was presented went beyond providing context for understanding the complainants’ evidence. Through the use of hypotheticals tracking the specific allegations and behaviours of the complainants, Dr. Haskell’s opinion evidence improperly bolstered their credibility and served to blunt any prospective cross-examination of the complainants. Accordingly, even if the evidence had been necessary, it should have been excluded because its prejudicial effect outweighed any probative value it may have had.

(a) Necessity

[33] The primary danger posed by the admission of expert evidence is, as explained by Major J. in D.D., at para. 53, that “faced with an expert’s impressive credentials and mastery of scientific jargon, jurors are more likely to abdicate their role as fact-finders and simply attorn to the opinion of the expert in their desire to reach a just result.” In judge-alone trials, “the need to draw the line properly between the role of the expert and the role of the court” remains an animating concern when determining the admissibility of expert evidence: R. v. J.‑ L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 26; see also R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 46.

[36] There is no doubt that Dr. Haskell’s evidence on the neurobiology of trauma was technical and outside the knowledge and experience of the average Canadian. It is also true that understanding the neurobiology of the brain may be helpful in that it provides explanations for why people who suffer trauma as a child may later, as adults, have gaps in their memories of these traumatic events. Similarly, as Dr. Haskell explained, semantic encoding provides an explanation as to why someone like E.M., who recalls having been sexually abused as a child, might not remember whether her abuser ejaculated. However, as explained by the Supreme Court, the fact that something is outside the knowledge of a lay person and may be helpful is not sufficient to meet the necessity requirement for admission of expert evidence. The question the trial judge ought to have asked was whether, in the present case, she could correctly assess and interpret the complainants’ testimony without the help of Dr. Haskell’s evidence. In other words, was an understanding of the functioning of the brain, the neurobiology of trauma, and semantic encoding, amongst other things, necessary to assess whether the three complainants were credible, and whether their evidence was reliable. By equating helpfulness with necessity, the trial judge erred.

[37] …As I have explained, however, the trial judge effectively ended her inquiry after determining that the technical evidence given by Dr. Haskell was outside the knowledge of the average person and may be helpful. Finding that expert evidence might reasonably assist the trier of fact is not enough to make out necessity: D.D., at para. 47. The trial judge ought to have gone on to determine whether that evidence met the legal threshold of necessity, in that it was required to appreciate the complainants’ evidence.

[38] Applying the appropriate test, I conclude that, in the context of this case, the fact that Dr. Haskell’s testimony with respect to the neurobiology of trauma is outside the knowledge of the average person is, in a sense, irrelevant. The assessment of the credibility and reliability of witnesses, including those testifying about traumatic events they suffered as children (or as adults), is the daily fare of judges and is grounded in common knowledge and experience. In general, triers of fact do not need to know how the brain functions and encodes memories to assess the probative value of this evidence. The Supreme Court and this court have confirmed that trial judges are equipped to analyze the evidence of witnesses with frailties in their memory without the assistance of expert evidence: see R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, at paras. 14-15; R. v. G.M.C., 2022 ONCA 2, 159 O.R. (3d) 561, at paras. 38-39; R. v. Perlett (2006), 212 C.C.C. (3d) 11 (Ont. C.A.), at para. 108; and R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont. C.A.) at para. 73, per Laskin J. (dissenting) (reasons substantially adopted in 2001 SCC 6, [2001] 1 S.C.R. 281). [Emphasis by PJM]

[40] In my view, the average person is well able to assess the credibility and reliability of witnesses such as the complainants without Dr. Haskell’s evidence. As explained by Strathy C.J.O. in G.M.C., at para. 38, people can reasonably be expected to understand that observations made in the course of traumatic events can be difficult to recall and describe accurately, and the inability to recall minor or insignificant aspects of a traumatic event does not detract from a witness’ overall reliability or credibility; these are propositions “grounded in common experience, that are familiar to every trial judge and lawyer and to lay people.” [Emphasis by PJM]

[41] In G.M.C., Strathy C.J.O. was discussing adults testifying about traumatic events suffered while they were adults. His comments apply all the more when the witness is an adult testifying as to traumatic events suffered when they were children. There is a longstanding recognition in our law that memories formed as a child can be expected to contain gaps in respect of details, including time and place: see R. v. W.(R.), [1992] 2 S.C.R. 122, at pp. 133-34; R. v. B.(G.), [1990] 2 S.C.R. 30, at pp. 54-55. The standard for assessing the credibility of adult complainants giving evidence about harm they suffered as children accounts for these expected frailties: see R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 11.

[42]…There are situations where, as explained by Rosenberg J.A. in R. v. M.(B.) (1998), 130 C.C.C. (3d) 353 (Ont. C.A.), expert evidence about the functioning of memory may be necessary. In M.(B.), Rosenberg J.A. suggested that, although expert evidence about the effect of trauma on memory would not generally meet the necessity requirement, a narrow expert opinion on memory may have been admissible in that case to assess the reliability of testimony based on a memory the witness had allegedly formed as a two-year-old, because that might be outside the normal experience of a trier of fact: at para. 101. The facts of M.(B.), however, were unusual and the issue Rosenberg J.A. seized on is quite distinct from those before the court in this case. At its core, Dr. Haskell’s evidence did little more than give a neurobiological explanation of why memories of traumatic childhood events may contain gaps and inaccuracies.

(b) Overriding prejudicial effect

[45] Over and above the concern as to lack of necessity, I consider the manner of presentation of Dr. Haskell’s evidence to be problematic and unduly prejudicial. As I will explain, Dr. Haskell’s evidence went beyond explaining the neurobiology of trauma and its effects on memory. The Crown fashioned hypothetical questions for Dr. Haskell to answer that closely paralleled the allegations of sexual and other physical abuse as well as the frailties and gaps in the complainants’ memories. The hypotheticals were designed to elicit an opinion from Dr. Haskell that the gaps and frailties in the hypothetical subject’s memory – and therefore the complainants’ memories – were consistent with the way people who suffered such abuse would remember the incidents. They anticipated Crown-led evidence from the complainants to inure the trier of fact to those identified gaps and frailties thereby improperly bolstering the complainants’ credibility and reliability.

(ii) How the evidence unfolded

[54] The prejudice occasioned by the hypotheticals was compounded by the manner and sequence in which the evidence was presented. The Crown’s position on appeal is that Dr. Haskell’s evidence was appropriately led to provide the trier of fact with a more complete picture of the complainants’ evidence, particularly their flawed memories. After Dr. Haskell provided expert evidence on how victims of childhood abuse would testify, the Crown’s examination of the complainants in effect prompted them to testify precisely in that way. As a result, the way the evidence unfolded could reasonably have created the impression that because the complainants answered the Crown’s questions in a manner that would be expected of persons having suffered abuse, the complainants’ answers were evidence suggesting that they had in fact suffered abuse as children – in other words, that their allegations of abuse were credible and reliable.

[63] As a result, even if I had found Dr. Haskell’s evidence met the necessity requirement, due to the hypotheticals used and how the evidence unfolded, I am of the view that it carried a prejudicial effect that far outweighed any probative value. For these additional reasons, I conclude that the trial judge erred in admitting the evidence.

D. DISPOSITION

[71] I would allow the conviction appeal, set aside the convictions and order a new trial. In light of this conclusion, I need not deal with the sentence appeal.

R v DeSutter, 2025 NSCA 18

[March 11, 2025] Probative v Prejudicial Value: Sexual Images and Sexual Assault [Majority Reasons by Wood C.J.N.S. with Beaton J.A. concurring, and Derrick J.A. dissenting]

AUTHOR’S NOTE: In this case, police discovered a USB drive under the accused’s bed containing images of women being sawed in half, some wearing lingerie or partially naked. The Crown sought to introduce these images as evidence of the accused’s motive for allegedly touching women’s midriffs with a cardboard saw for a sexual purpose.

However, the trial judge excluded the evidence, and the Court of Appeal upheld that decision, dismissing the Crown’s appeal. The ruling confirmed that, in this context, the images were inadmissible because they relied on improper propensity reasoning, unfairly suggesting that the accused had a predisposition to commit the alleged offence.

Reasons for judgment:

[1] By Information dated October 25, 2021, Robert DeSutter was charged with 14 offences involving three complainants who were identified by the initials M.H., S.H. and T.R….

[3] The trial took place before Judge Catherine Benton of the Nova Scotia Provincial Court over eight days between March 2023 and July 2023. By oral decision given on September 28, 2023, the trial judge acquitted Mr. DeSutter of all charges except assault contrary to s. 266 of the Code.

[4] The Crown appealed…

Application to Admit the USB Images

[13] After completion of the Crown’s evidence, the trial judge heard an application by the Crown for admission of the contents of a USB and cell phone seized from Mr. DeSutter’s residence. She determined these were not admissible. On appeal the Crown alleges the trial judge erred in law by not admitting the USB which was found under a mattress in Mr. DeSutter’s bedroom.

[15] The Crown witnesses who testified prior to the application provided evidence which, if accepted by the trial judge, could have established:

1. Mr. Desutter was obsessed with magic and, in particular, the illusion of a magician cutting a woman in half with a saw.

2. In his residence, Mr. DeSutter, had a cardboard saw with a collapsible centre portion.

3. Mr. DeSutter asked M.H., S.H. and J.R. if he could use the cardboard saw and pretend to cut them in half.

4. M.H., S.H. and J.R. gave permission for Mr. DeSutter to place his cardboard saw on their abdomen. This took place once with each of the complainants, and during the activity there was no other touching by Mr. DeSutter nor any conversation or comments of a sexual nature.

5. When Mr. DeSutter placed the saw on the abdomens of M.H., S.H. and J.R. they were clothed. For M.H. and S.H. they pulled up their shirt so the saw rested on the skin of their abdomen.

[16] For most of the charges against Mr. DeSutter, the Crown was required to prove that when he placed the saw on the abdomens of the complainants he did so for a sexual purpose. They were relying on the USB to establish this purpose.

[17] The majority of the images on the USB were illustrations, computer generated images or photographs depicting the illusion of a woman being sawed in half. In most, the women wore clothing, such as lingerie, which exposed their midriff. In a few, they were fully or partially naked.

[18] In oral argument on the admissibility application, Crown counsel said images which included items similar to those found at Mr. DeSutter’s residence should be admitted because of their “situation-specific relevance”…

…The evidentiary connection between these images and the use of the cardboard saw for a sexual purpose was outlined in the Crown brief:

It is anticipated that the accused will assert that touching the complainants’ belly buttons with his hands and with the cardboard saw was not sexual and solely connected to an interest in magic. The images on the USB and cellphone rebut any such assertion not only by the obvious sexual nature of most of these images but also by the amount of images. The court is entitled to draw an inference based on the content of the USB the accused’s intention in touching in this case was sexual.

Secondly, during cross-examination of witness MH, questions were raised about the accused’s maturity or intelligence. The court is entitled to draw an inference that the location of the USB stick – hidden between the mattresses – demonstrates an awareness on the part of the accused that his interest was sexual. The contents are similarly relevant to whether the accused’s contact with the complainants was merely innocent association.

[19] In oral argument, Crown counsel said the USB images could be used for “situation-specific propensity reasoning” but not for the prohibited “general” propensity reasoning…

[20] Mr. DeSutter argued the Crown was introducing bad character evidence to infer he had the propensity and disposition to engage in the illusion of sawing for sexual purposes. He said the probative value was completely outweighed by the potential prejudice.

[25] After deciding the naked images could be relevant, the trial judge undertook an assessment of their probative value in the circumstances described by the Crown’s witnesses. She concluded the inference sought by the Crown, that Mr. DeSutter used the saw for a sexual purpose, did not arise. For this reason, the potential prejudice of the USB images outweighed any possible probative value. The hearing judge summarized her analysis on this issue as follows:

In considering same, I refer back to the comments made from our Court of Appeal in R v C.J., and the Ontario Court of Appeal in R. v L.O. Specifically does this proposed evidence allow me to make the inference that the Crown seeks. Which is essentially, because these images depicted on the USB involved females being sawn in half or, or in partial or for states of dress — undress. Mr. Desutter viewed same, had a sexual interest in same, and his actions with the complainant are motivated by same. In reviewing the circumstances outlined by the complainant, it’s believed both complaints were clothed. Only exposing the areas of their midsections at the time that Mr. Desutter used the fake saw. In my view, without further evidence on whether this supposed interest was in fact sexual, and that because of that interest Mr. Desutter was interested in recreating the scenarios in the images with real individuals, I find that it would be extremely prejudicial to Mr. Desutter to admit this evidence.

The probative value of this evidence is outweighed by it’s prejudicial effect and therefor the application for admission is denied.

Analysis

[35] The Crown seeks a new trial for Counts #3 and #14. In order to obtain this relief with respect to Count #3 they must demonstrate the trial judge erred in law in her decision not to admit the contents of the USB. In addition, they must establish that, had she admitted the USB, it might have had a material bearing on the verdict of acquittal.

Refusal to Admit the USB

[39] There is no dispute the trial judge accurately summarized the applicable legal principles. These are found in the cases provided by counsel including R. v. Handy and R. v. L.O., 2015 ONCA 394. One of the issues in L.O. was the admissibility of the appellant’s possession of child pornography in a trial for sexual assault, sexual interference and invitation to touch for a sexual purpose in relation to a child. The court outlined the appellant Crown’s argument with respect to relevance and admissibility in the following passage:

Inference #3:

It can be inferred from the appellant’s interest in engaging in sexual activity with young children that he sexually abused L.F., as alleged in counts 1-3.

[69] When one speaks of motive in the sense of an emotion that compels an act, one can use the word to refer to a very specific emotion, e.g. the anger a person feels towards a spouse at the moment he learns of the spouse’s infidelity, or to a much more general emotion, e.g. a person’s dislike of persons in authority. The former kind of motive can be very probative of the accused’s conduct toward the target of his anger at the point in time close to the event giving rise to the anger. The latter kind of motive, because of its generality, says little about the conduct of an accused toward a specific person at a specific time. Motive used in this latter sense is essentially indistinguishable from evidence of disposition and should, for the purpose of admissibility, be analyzed as evidence of disposition: see Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, per Lamer J. (dissenting in the result, but for the court on this issue), at pp. 202-204; Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, at pp. 735-36; see also R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 87-89.

[40] The trial judge adopted and applied the same approach with respect to the inferences the Crown argued should arise from the USB:

In considering same, I refer back to the comments made from our Court of Appeal in R v C.J., and the Ontario Court of Appeal in R. v L.O. Specifically does this proposed evidence allow me to make the inference that the Crown seeks. Which is essentially, because these images depicted on the USB involved females being sawn in half or, or in partial or for states of dress — undress. Mr. Desutter viewed same, had a sexual interest in same, and his actions with the complainant are motivated by same. In reviewing the circumstances outlined by the complainant, it’s believed both complaints were clothed. Only exposing the areas of their midsections at the time that Mr. Desutter used the fake saw. In my view, without further evidence on whether this supposed interest was in fact sexual, and that because of that interest Mr. Desutter was interested in recreating the scenarios in the images with real individuals, I find that it would be extremely prejudicial to Mr. Desutter to admit this evidence.

[43] The Crown’s argument on appeal relies on the proposition the images on the USB demonstrate a sexual interest in the illusion of cutting a woman in half. They say the trial judge’s error was in failing to transpose that interest to Mr. DeSutter’s use of the cardboard saw…

[44] The trial judge’s decision is clear. She was not prepared to find the USB images established Mr. DeSutter had a sexual fetish involving touching women with a cardboard saw. In addition, the trial evidence showed Mr. DeSutter did not ask the complainants to undress nor did he make comments of a sexual nature during the activity. The complainants testified he did not say anything at all while using the saw.

[45] The arguments advanced by the Crown are similar to those rejected by the Ontario Court of Appeal in R. v. Harvey:

[50]…If an appellate court is satisfied that on a proper appreciation of the evidence and a proper application of the applicable test for admissibility there is only one reasonable result, either admission or exclusion, the appellate court should intervene if the trial judge did not arrive at that result. If, however, the case is one in which the evidence is such that different trial judges acting reasonably could come to different conclusions as to the admissibility of the evidence depending on their assessments of probative value and prejudicial effect, then the appellate court must defer to the decision of the trial court.

[53] The fact that this trial judge was not prepared to give the similar fact evidence the probative value that other trial judges acting reasonably might well have given it does not constitute reversible error. I think the trial judge’s ultimate assessment that the probative value did not clearly outweigh the prejudicial effect was within the broad range of what should be considered reasonable in the circumstances. I would defer to her decision.

[46] The appellant has not established an error in law on the part of the trial judge in refusing to admit the USB. Her assessment of the probative value and relative prejudice is entitled to significant deference and falls within the broad range of what could be considered reasonable in the circumstances.

[49] Even if the Crown had shown an error by the trial judge in refusing to admit the USB, they have not demonstrated this might have had a material bearing on the verdict of acquittal. To the contrary, the comments in the admissibility decision, combined with her decision on the merits, show she was not prepared to draw the inferences sought by the Crown from the USB images – that Mr. DeSutter had a sexual fetish which he acted upon with M.H. and J.R. In the absence of those inferences the Crown had no evidence Mr. DeSutter’s use of the cardboard saw was for a sexual purpose and his acquittal on Count #3 was inevitable.

[50] I would not allow this ground of appeal.

Conclusion and Disposition

[63] For the above reasons, I am not satisfied the Crown has met its burden of establishing an error of law on the part of the trial judge justifying appellate intervention. I would dismiss the appeal.

R v SK, 2025 ONCA 149

[February 26, 2025] Sexual Assault: Accused Lack of Sex Life a Motive? [Janet Simmons, J.George, R. Pomerance JJ.A.]

AUTHOR’S NOTE: Sexual assault is recognized as a crime of domination, violence, and sometimes paraphilia, rather than a mere pursuit of sexual gratification. Despite this, in this case, a Crown prosecutor argued that the accused had a motive to commit sexual assault because he lacked an active sex life.

The Court of Appeal rejected this reasoning, finding that it improperly invited the jury to engage in propensity-based analysis, which is legally impermissible. The argument implied that a lack of sexual activity made the accused more likely to commit sexual assault, a dangerous and unfounded inference. As a result, the Court of Appeal ordered a new trial.

[1] Following the oral hearing, we allowed this appeal for reasons to follow. These are our reasons.

[2]…The appellant appeals his conviction for sexual interference.

[3] The complainant in relation to both charges was the appellant’s first cousin. She alleged that the appellant repeatedly sexually abused her when she was between the ages of 8 and 18. The sexual interference charge related to allegations arising before her sixteenth birthday, the sexual assault charge to allegations arising thereafter. The self-represented appellant testified at trial and denied all allegations.

[5] As for his first ground of appeal, the appellant submitted that, at trial, the Crown invited the jury to engage in impermissible reasoning by submitting as part of his closing address that the appellant’s sustained lack of romantic relationships with women since approximately 2008 or 2009 somehow provided him with a motive to commit the alleged offences. He asserts that the trial judge erred by not only failing to correct this improper submission but also by exacerbating the prejudice it caused by including the Crown’s statement of this position in his jury charge.

[6] In his closing address to the jury, the trial Crown said, in part, the following:

[The appellant], in my view, was a sexual opportunist. Having no romantic relationships with women during that time period in his life, when he saw opportunities to satisfy his sexual urges through his cousin, he took those opportunities. [Emphasis added.]

[8] We accept the appellant’s submission that these references to, and suggested use of, the appellant’s lack of romantic relationships were irrelevant, prejudicial and unfair.

[9] The references were irrelevant because the fact of the appellant having no such relationships had no bearing on a material fact in issue at the trial…

…Standing alone, the fact that the appellant was, or was not, involved in a romantic relationship at the time of the alleged offences made it no more or less likely that he committed them and shed no light on his opportunity to do so. That the self-represented appellant volunteered irrelevant evidence adds nothing to the Crown’s position.

[10] To be sure, inviting the jury to find that the appellant acted opportunistically would not have been improper. However, the Crown’s expression of a personal opinion in that respect was both improper and prejudicial. It added the stature of Crown counsel’s opinion to what should have been a submission. [Emphasis by PJM]

[11] More importantly, the references to the appellant’s lack of romantic relationships in the Crown’s closing and in the jury charge were prejudicial because they invited the jury to engage in an impermissible form of reasoning: that the appellant was somehow incentivized or motivated to commit a criminal offence — a sexual assault — because he was not involved in a romantic relationship. [Emphasis by PJM]

[12] Finally, the references to the appellant’s lack of romantic relationships was unfair because the trial Crown did not cross-examine the appellant at trial on this alleged motive. He was therefore deprived of any opportunity to neutralize the improper suggestion.

[13] Based on the foregoing reasons, we are satisfied that the trial judge erred in failing to correct the Crown’s improper suggestion in his closing and also by incorporating into the jury charge a statement of the Crown’s position that escalated the improper suggestion into a motive. In fairness to the trial judge, because the appellant was self-represented, the trial judge did not have the benefit he generally would have from the assistance of defence counsel.

[15] We therefore allowed the appeal, set aside the appellant’s conviction and ordered a new trial.

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This week's top three summaries: R v Purvis, 2024 NSCA 54: #editing stmt, R v Mostowy, 2024 BCCA 197: #severance, and R v Kwon, 2024 SKCA 50: #ungrounded assumptions. R v Purvis, 2024 NSCA 54 [May 22, 2024] Accused Statements: Editing Voir Dire Required, Also:...

The Defence Toolkit – April 13, 2024: “Murder Advice”

This week's top three summaries: R v Amin, 2024 ONCA 237: #Mr Big and #murder advice, R v Patel, 2024 NSCA 40: #common sense, and R v NC, 2024 ONCA 239: #credibility of accused. Our firm focuses on representation in complex criminal trials and criminal appeals. We...

The Defence Toolkit – January 20, 2024 “Off-the-Record Conversations”

This week's top three summaries: R v KJMJ, 2023 NSCA 84: #bias, R v Moreira, 2023 ONCA 807: lay #opinion, and R v MacAdam, 2024 ONCA 13: trafficking #expert alternative possibilities. Our firm focuses on representation in complex criminal trials and criminal appeals....