



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii) an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.C., 2014 ONCA 611

DATE: 20140827

DOCKET: C55380

Strathy C.J.O., Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.C.

Appellant

Marie Henein and Matthew Gourlay, for the appellant

Benita Wassenaar and Jennifer Mannen, for the respondent

Heard: June 25, 2014

On appeal from the convictions entered on March 1, 2012
    by Justice Julie A. Thorburn of the Superior Court of Justice, sitting without
    a jury.

Watt J.A.:

[1]

About two years after an alleged sexual assault, the complainant
    collapsed on the floor. He began to scream. He gestured with his hands. He did  
    not respond to his mother. He did not respond to a police officer who had
    answered a 911 call. The episode lasted about 20 or 30 minutes.

[2]

At M.C.s trial for several sexual and other offences arising out of the
    original incident, the trial Crown proffered the evidence of a clinical
    psychologist who linked the complainants seizure-like behaviour to the prior
    sexual assault the complainant alleged M.C. had committed.

[3]

Trial counsel for M.C. (not Ms. Henein or Mr. Gourlay) objected to the
    admissibility of the evidence of the clinical psychologist. The objection
    failed. The trial judge admitted the evidence, found it most compelling and
    important independent corroboration of the complainants allegations, and found
    M.C. guilty of all the offences with which he was charged.

[4]

M.C. renews his objection to the admissibility of this evidence. This
    time, his objection prevails. These reasons explain why.

THE BACKGROUND FACTS

[5]

A brief reference to the underlying allegations and their journey to
    trial provides a suitable frame for discussion of the admissibility issue
    raised here.

The Setting

[6]

M.C. and the complainant are related, members of a large family who get
    together frequently at social gatherings. One of those gatherings occurred in
    the summer of 2007. Both M.C. and the complainant
[1]
were guests at a relatives home.

The Allegations

[7]

The complainant said that he entered a second floor bathroom and closed,
    but did not lock the door behind him. While he was seated on the toilet, M.C.
    opened the bathroom door. The complainant said someones in here. M.C. walked
    into the bathroom, closed the door behind him, and locked it.

[8]

The complainant was worried. He began to scream. M.C. put a towel in his
    mouth. The complainant stood up. His pants were around his ankles. M.C. pushed
    the complainant against the bathroom wall, fondled the complainants penis and
    squeezed his scrotum.

[9]

As time passed, the complainant added further details to his initial
    account. He alleged that M.C. turned him to face the wall, pulled down his
    pants, inserted his penis in the complainants anus and moved his penis in and
    out of the complainants anus. This anal penetration was very painful for the
    complainant.

[10]

The
    complainant heard a noise on the stairs. M.C. pulled his penis out of the
    complainants anus, pulled up his pants and washed his hands. M.C. told the
    complainant that if he (the complainant) said anything to anybody about what
    had happened in the bathroom, he (the complainant) would be in trouble and M.C.
    would kill the complainant and his family.

[11]

After
    M.C. left the bathroom, an adult relative of the complainant entered and asked
    whether everything was alright. The complainant did not tell the relative that
    anything was wrong.

The Consequences

[12]

The
    complainant alleged that he suffered rectal bleeding after the incident in the
    bathroom.

[13]

The
    complainant was prone to unprovoked outbursts of anger during his childhood.
    Several witnesses testified about these episodes, providing different versions
    about when they commenced and their intensity. The complainants mother
    testified that the outbursts intensified after the alleged sexual assault and
    included the complainant punching holes in the wall and attacking her. Other
    relatives said that the complainant had been given to such conduct since he was
    a toddler.

The First Disclosure

[14]

The
    complainant said nothing to anybody about the bathroom incident until several
    months later during the winter of 2008. The complainant was living with his
    mother after his parents had separated in 2006. The initial disclosure made no
    reference to anal intercourse or any threats to the complainant about the
    consequences of disclosure.

[15]

The
    complainants mother reported the disclosure to child welfare authorities and
    to the police, but no charges were laid. The complainant was enrolled in
    counselling.

The Second Disclosure

[16]

About
    a year later, shortly after his therapy had ceased, the complainant became
    quite insistent about telling his mother more about the incident with M.C.
    Despite his mothers advice to tell his therapist about what had happened, the
    complainant told his mother that M.C. put his penis in my bum and thats all.

[17]

The
    complainant repeated this disclosure to his therapist who provided the
    information to the CAS the following day. After the therapy session, the
    complainant told his mother that M.C. threatened to kill the complainant and
    his mother. He had not told his mother about the threats earlier because he
    took them seriously and was scared.

The Second Police Statement

[18]

About
    a month after the disclosure to his therapist, the complainant provided a statement
    to the police. He described the bathroom incident including anal intercourse
    and the threats M.C. made as he left the bathroom.

[19]

Police
    arrested M.C. the next day.

The Seizure-like Episode

[20]

Within
    a day of the complainants second police interview, he told his mother that he
    wanted to talk to her about what had happened to him. His mother tried to
    deflect his request because she was mindful of the admonition police had given
    her not to discuss the incident with her son. The complainant became frustrated.
    He told his mother that he just wanted to tell her how much it hurt.

[21]

A
    couple of hours later the complainant and his mother were at another relatives
    home. The complainant got up to get a toy. Suddenly, he screamed and collapsed
    to the floor. His body convulsed. His eyes rolled back. He had difficulty
    breathing. His mother called 911. A police officer responded to the call.

[22]

The
    seizure-like episode continued for 20 to 30 minutes. The complainant screamed.
    He did not respond either to his mother or to the police officer. He held his
    penis. He held his bum. He said hes going to kill me. He moaned. His
    breathing was laboured. He rolled around on the floor.

[23]

When
    the telephone rang in the house, the complainant panicked. He moved towards the
    wall. He identified the caller as uncle, but did not refer to him by name.
    The complainant was taken by ambulance to the Hospital for Sick Children.
    There, the complainant asked his mother why they had gone to the hospital.

The Expert Evidence

[24]

At
    trial, Crown counsel (not Ms. Wassenaar or Ms. Mannen) called a clinical
    psychologist, Dr. David Wolfe, to give evidence about:

i.

delayed, incremental and inconsistent disclosure by victims of child
    sexual abuse; and

ii.

symptoms of non-epileptic seizures (NES), Post-traumatic Stress Disorder
    (PTSD) and their relation to the seizure-like episode involving the complainant
    on April 25, 2009.

[25]

Trial
    counsel for the appellant objected to the admissibility of the evidence about
    delayed, incremental and inconsistent disclosure on the ground that it did not
    satisfy the necessity requirement for expert evidence. Counsel contended
    further that the witness was not qualified to give an opinion about NES, PTSD
    and their relation to the seizure-like episode.

[26]

The
    trial judge permitted Dr. Wolfe to give evidence on:

·

delayed, incremental and inconsistent disclosure as it relates to
    child victims of sexual abuse and the variations, combinations and changes
    involving disclosure by child victims of sexual abuse and the current literature
    regarding these behaviour patterns;

·

the symptoms he was told were exhibited by the complainant on the
    evening of his seizure-like event, and compare them to the symptoms of those
    who suffer non-epileptic seizures and the symptoms associated with post
    traumatic stress; and

·

the research regarding the alleged statistical correlation
    between child sexual abuse and non-epileptic seizures and post traumatic stress
    disorder.

[27]

The
    trial judge permitted Dr. Timothy Moore, a cognitive psychologist proffered by
    trial counsel for the appellant, to give evidence on the same issues as Dr.
    Wolfe.

THE GROUNDS OF APPEAL

[28]

The
    appellant advances four grounds of appeal. The first two, which are related,
    are the principal grounds. They have to do with the admissibility and the trial
    judges use of evidence about the seizure-like episode, and of Dr. Wolfes
    opinion about the link between that episode and the sexual assault alleged to
    have occurred two years earlier. The third ground relates to the propriety of
    the trial Crowns cross-examination of the appellant. And the final ground
    concerns the comparative scrutiny that the trial judge applied to the evidence
    of the principal witnesses  the complainant and the appellant.

[29]

For
    discussion purposes, I would collapse the grounds of appeal into three and
    paraphrase them as alleged errors in:

i.

admitting and relying upon evidence of the complainants utterances
    during the seizure-like episode, and on Dr. Wolfes opinion about the
    connection between those utterances and the alleged sexual assault as
    confirmatory of the complainants evidence;

ii.

permitting the trial Crown to cross-examine the appellant about the
    possible motive of complainant to lie; and

iii.

applying a more rigorous standard of scrutiny to the testimony of the
    appellant than to that of the complainant.

Ground #1: Admissibility and Use of Evidence about the NES
    Episode

[30]

This
    ground of appeal is concerned with both the admissibility and the use of two
    aspects of the evidence about the NES episode:

i.

the
utterances
made by the complainant during the episode; and

ii.

the
opinion
of Dr. Wolfe concerning the nature of the episode
    and its relationship to the alleged sexual assault of the complainant by the
    appellant two years earlier.

[31]

To
    situate the appellants complaints of error in their proper setting, it is
    helpful to recall what the trial judge said about the
admissibility
of
    the evidence as well as the
use
she made of it in concluding that the
    Crown had proven the appellants guilt beyond a reasonable doubt.

The Admissibility Ruling

[32]

Trial
    counsel for the appellant does not appear to have challenged the relevance,
    materiality or admissibility of the evidence of those who witnessed the
    complainants seizure-like activity and what he said as the event unfolded.
    Thus, the focus of the trial judges ruling was on the admissibility of Dr.
    Wolfes opinions about the symptoms of NES and PTSD and how either could
    explain the seizure-like episode.

[33]

The
    trial judge took her lead in ruling on the admissibility of Dr. Wolfes opinion
    from the decisions of the Supreme Court of Canada in
R. v. Mohan
,
    [1994] 2 S.C.R. 9 and of this court in
R. v. Abbey
, 2009 ONCA 624.

[34]

On
    the
necessity
of Dr. Wolfes evidence about the seizure-like episode,
    the trial judge concluded:

[58] Finally, Dr. Wolfe is permitted to articulate the symptoms
    he was told were exhibited by the Complainant on the evening of his
    seizure-like event, and compare them to the symptoms of those who suffer
    non-epileptic seizures and the symptoms associated with post traumatic stress.
    He is also permitted to discuss the research regarding the alleged statistical
    correlation between child sexual abuse and non-epileptic seizures and post
    traumatic stress disorder.

[59] Moreover, the examination of the psychological data and
    case studies referred to in the article D. Sharpe & C. Faye, Non-epileptic
    seizures and child sexual abuse: A critical review of the literature (2006) 26
    Clinical Psychology Review 1020.to explain the Complainants seizure-like
    episodes require expert understanding and an ability to analyze and fully
    understand the underlying data and methodology behind the 34 studies examined.

[35]

The
    trial judge was satisfied that Dr. Wolfe had the
expertise
necessary
    to proffer the opinion the trial Crown sought to elicit. The trial judge
    reasoned:

[60] Defence counsel argued that Dr. Wolfe is not qualified to
    provide expert evidence, since his testimony was predicated upon one article
    and not upon clinical research conducted personally. This assumes that Dr.
    Wolfe must have personal experience in the field of child psychology in order
    to testify. He does not need personal experience. As stated above, where the
    court is satisfied that the witness has expertise in the subject matter at
    issue, the admissibility of expert evidence does not depend on how the
    expertise was acquired:
R. v. N.O., supra
. The fact that Dr. Wolfe
    does not have personal experience is relevant to the weight that I assign to
    his evidence. I note, however, that the Sharpe and Faye article referred to and
    relied upon by Dr. Wolfe is a peer reviewed article which enhances its
    reliability.

[61] Dr. Wolfe is a child psychologist with a specific
    expertise in trauma and child abuse and can therefore opine on the effect of
    delayed, incremental and inconsistent disclosure by child victims of trauma
    including child abuse, and analyze the findings in the key publications he
    reviewed and considered.

[36]

The
    trial judge conducted the cost-benefit analysis required by
Mohan
and
Abbey
.
    She concluded that the probative value of Dr. Wolfes testimony exceeded its
    prejudicial effect and admitted it as evidence at trial.

The Reasons for Judgment

[37]

The
    trial judge found the complainants account of what happened was reliable and
    credible for several reasons. The complainants account of the events was
    specific and clear, barren of material inconsistencies and untainted by
    improper influence.

[38]

The
    trial judge also found the complainants account of what had happened credible
    and reliable because his account was
corroborated
by other evidence
    adduced at trial. The most important corroborative evidence was the testimony
    about the seizure-like episode of April 25, 2009. Of that evidence, the trial
    judge said:

[123] Most importantly, I find that the Complainants
    spontaneous utterance while in a dissociated state of trauma and unaware of
    what he was saying at the time, confirms important aspects of his allegation of
    sexual abuse and uttering death threats.

[124] The Complainants evidence concerning the incident is
    consistent with the symptoms of trauma exhibited by him during his seizure on
    April 25, 2009. He had never suffered a seizure of this type before. The
    seizure was preceded earlier that day by a request to tell his mother more
    about how he felt during the incident and her reticence to engage in that
    conversation.

[125] Officer Shedes testified that during the seizure, the
    Complainant held his penis and said Hes going to kill meit hurts and when
    the telephone rang expressed extreme fear panic and yelled, Its uncle.
    Finally, the incident on April 27, 2009 where the Complainant saw two of the
    accused brothers is corroboration of the link between his disclosure of the
    threat made by the accused in the summer of 2007, his fear of the accused and
    the fact that the extreme fear was linked to the accused.

[126] I accept Dr. Wolfes opinion that it is harder to
    embellish the story where disclosure is made in the context of an emotional
    outburst.

[127] The evidence regarding this traumatic event leads me to
    believe that the Complainant suffered trauma and that the source of this trauma
    was the incident with his uncle, the accused. I say this not because he had the
    seizure but because while he had the seizure and was unaware of what was
    happening to him, he made statements expressing fear of uncle, indicated that
    someone was going to kill him and held his penis and behind.

[128] For all of these reasons I find the Complainants testimony
    to be both credible and reliable. When viewed in the context of the evidence as
    a whole, I do not find the accuseds blanket denial that the event took place
    to be believable nor does his evidence leave me with a reasonable doubt as to
    his guilt.

The Arguments on Appeal

[39]

For
    the appellant, Ms. Henein contends that the trial judge erred in admitting and
    relying upon evidence of the complainants
utterances
during the
    seizure-like episode as independent corroboration of the complainants
    allegations.

[40]

Ms.
    Henein says that reception and use of the complainants utterances as evidence
    of the truth of their contents offended both the hearsay rule and the rule that
    bars the introduction of prior consistent statements of a witness. No effort
    was made at trial to have the utterances admitted under either a traditional or
    the principled exception to the hearsay rule. Further, the utterances did not
    qualify for reception under any recognized exception to the rule relating to
    prior consistent statements. But even if a diligent search could unearth such
    an exception, the utterances would not be admissible for the proof of their
    contents, thus could not be corroborative of the complainants account.

[41]

Ms.
    Henein submits further that the trial judge erred in admitting and relying upon
    the
opinion
evidence of Dr. Wolfe about the value of the utterances
    and their origins in the alleged conduct that forms the subject-matter of the
    charge. Critical to the opinion of Dr. Wolfe was that the episode was an NES.
    But there was no admissible evidence that what occurred was an NES. Dr. Wolfe
    lacked the expertise to make such a characterization. He was not qualified to
    proffer any opinion about the nexus between the episode and the antecedent
    conduct.

[42]

For
    the respondent, Ms. Wassenaar takes the position that the evidence of the
    complainants conduct during the seizure-like episode was relevant and
    admissible at trial where no objection was taken. The complainants utterances
    were admissible under the narrative exception to the prior consistent statement
    rule and were available for use as circumstantial evidence that could assist
    the trial judge in her evaluation of the complainants testimony.

[43]

Besides,
    Ms. Wassenaar adds, the utterances of the complainant during the episode were
    admissible as evidence of the truth of their contents under both the
res
    gestae
exception to the hearsay rule, as well as in accordance with the
    principled approach. It follows that their use as corroboration of the
    complainants allegations was proper.

[44]

Ms.
    Wassenaar resists any claim that the opinion proffered by Dr. Wolfe should have
    been excluded. Dr. Wolfe was properly qualified to offer an opinion on the
    issue. His opinion did not extend beyond his expertise. The weight to be
    assigned to the opinion was for the trial judge to determine. Her assessment of
    it is subject to deference in this court.

The Governing Principles

[45]

Several
    principles have a say in whether evidence should be received in a criminal case
    and, if received, how the trier of fact is entitled to use it in reaching their
    conclusion.

[46]

Three
    fundamental principles determine whether evidence will be received in a
    criminal trial:

·

relevance;

·

materiality; and

·

admissibility.

[47]

The
    dispute here has to do with admissibility. Neither at trial nor on appeal did
    counsel for M.C. take issue with the relevance or materiality of the evidence
    of the witnesses who saw and heard what has been described as the seizure-like
    episode.

[48]

Admissibility
    is a legal concept, something that the law interposes for various reasons
    between relevance and materiality, on the one hand, and receivability on the
    other. Admissibility is not an inherent characteristic of any individual item
    of evidence, rather is a quality that the law attaches to it when it has
    satisfied all the auxiliary tests and extrinsic policies of the law of
    evidence. Evidence that fails to satisfy the requirements of relevance or
    materiality engages no rule of admissibility, rather is excluded as irrelevant
    or immaterial, as the case may be.

[49]

Among
    the rules of admissibility, three are at work here. Typical of such rules, each
    is predominantly exclusionary, negative by nature. Equally typical, each is
    subject to well-defined and limited exceptions. Our concern is with the rules
    relating to the admissibility of:

·

hearsay;

·

prior consistent statements; and

·

opinion.

The Hearsay Rule

[50]

Like
    admissibility, hearsay is not an inherent characteristic of an item of
    evidence:
R. v. Baldree
, 2013 SCC 35, [2013] 2 S.C.R. 520, at paras.
    30 and 36. The defining features of hearsay are two-fold:

i.

the statement is adduced to prove the truth of what was said; and

ii.

the absence of a contemporaneous opportunity to cross-examine the
    declarant.

Baldree
, at para. 30; and
R. v. Khelawon
,
    2006 SCC 57, [2006] 2 S.C.R. 787, at para. 56. The touchstone for the
    admissibility of evidence that is said to be hearsay is the purpose for which
    the evidence is adduced. Evidence is hearsay  and presumptively inadmissible 
    if it is offered to prove the truth of its contents:
Baldree
, at para.
    36; and
Khelawon
, at para. 36.

[51]

The
    typical hearsay situation involves:

·

a declarant (who does not testify);

·

a recipient (who does testify);

·

a statement (that is offered in evidence); and

·

a purpose (proof of the truth of the contents of the statement).

[52]

The
    hearsay rule applies equally to out-of-court statements made by a witness who
    does testify in the proceedings when they are offered as proof of the truth of
    their contents:
Khelawon
, at para. 37;
R. v. B. (K.G.)
,
    [1993] 1 S.C.R. 740, at pp. 763-764; and
R. v. Starr
, 2000 SCC 40,
    [2000] 2 S.C.R. 144, at para. 158. The hearsay issue emerges in these cases
    when the witness does
not
repeat or adopt the information contained in
    the out-of-court statement and the proponent tenders the statement for the
    truth of its contents:
Khelawon
, at para. 38.

[53]

The
    exclusionary effect of the hearsay rule is not absolute. Hearsay evidence may
    be admitted under the traditional exceptions, which remain presumptively valid
    but subject to challenge on the basis of lack of necessity or reliability:
Khelawon
,
    at para. 42;
R. v. Mapara
, 2005 SCC 23, [2005] 1 S.C.R. 358, at para.
    15. Hearsay evidence may also be admitted if the proponent establishes the
    indicia of necessity and reliability under the principled exception:
Khelawon
,
    at para. 42; and
Mapara
, at para. 15.

[54]

When
    the hearsay rule is summoned as a basis upon which evidence should be excluded,
    the first inquiry should be whether the proposed evidence is hearsay:
Khelawon
,
    at para. 56. The central focus of this inquiry should be on the
purpose
for which the statement is being adduced. It is only where that purpose is to
    prove the truth of the contents of the statement that the hearsay rule is
    engaged and refuge must be sought under a traditional or principled exception
    for the evidence to be admitted.

[55]

A
    traditional hearsay exception permits the introduction of evidence of
    spontaneous statements about a declarants current physical condition, mental
    state or sensory impression, as well as excited utterances. Necessity is based
    on expediency since no other equally satisfactory source for the evidence
    exists either from the declarant or elsewhere. Reliability is rooted in the
    spontaneous origin of the statement before there is time for concoction.

[56]

Under
    the principled exception, the necessity requirement may be met where the
    declarant is unable (or unwilling) to provide a full and frank account of the
    relevant events, including the ability to recall significant details. The
    reliability requirement may be satisfied by:

i.

compliance with the indicia of
B. (K.G.)
;

ii.

the presence of adequate substitutes for testing truth and accuracy
    (procedural reliability); or

iii.

sufficient circumstantial guarantees of reliability or an inherent
    trustworthiness (substantive reliability).

See,
R. v. Youvarajah
, 2013 SCC 41, at para. 30.

[57]

Where
    the hearsay rule is engaged, the prior statement is presumptively inadmissible.
    Whether the exception invoked to justify admission of the hearsay is
    traditional or principled, the conditions precedent or indicia are established
    on a
voir dire
:
Mapara
, at para. 15.

The Prior
    Consistent Statement Rules

[58]

A
    second group of rules  the prior consistent statement rules  also has a say
    in the admissibility of the complainants utterances during the seizure-like
    episode. Like the hearsay rule, these rules are exclusionary, either
    restricting or prohibiting reception of evidence of declarations made by witnesses
    prior to trial consistent with their in-court testimony at trial:
R. v.
    Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.

[59]

Prior
    consistent statements are an amalgam of two elements  a hearsay element and a
    declaration element: Paciocco,
The Perils and Potential of Prior Consistent
    Statements: Lets Get it Right
(2013), 17 Can. Crim. L. Rev. 181, at p.
    184. The hearsay rule takes care of the hearsay element. The prior consistent
    statement rules generally exclude the declaration element. Their rationale for
    doing so is that prior consistent statements lack probative value:
Stirling
,
    at para. 5.

[60]

Like
    other exclusionary rules, however, the prior consistent statement rules have
    exceptions. And as with other exclusionary rules, the exceptions to the prior
    consistent statement rules tend to exist where the purposes that underpin the
    general exclusionary rule would not be served by excluding the evidence:
Paciocco
,
    at p. 187. Typically, the exceptions permit introduction of the prior
    consistent statement where proof of it is relevant without an inference of
    credibility enhancement because the witness said the same thing previously:
R.
    v. T. (W.P.)
(1993), 83 C.C.C. (3d) 5 (Ont. C.A.), at p. 36.

[61]

Where
    prior consistent statements are admitted by exception, the statements tend to
    be admissible for limited or restricted purposes. Sometimes, the hearsay part
    is admitted. Other times, however, the declaration part comes in. At all
    events, the exceptions are rules of limited or restricted admissibility.

[62]

Among
    the exceptions to the general exclusionary rule for prior consistent statements
    are statements admitted as:

i.

circumstantial evidence;

ii.

narrative; and

iii.

narrative as circumstantial evidence.

[63]

Where
    prior consistent statements are admitted as circumstantial evidence, the
    statement is
not
received as evidence of the truth of its contents,
    rather only to establish that the statement was made. That the statement was
    made may afford circumstantial evidence of some fact of importance in the
    proceeding, as for example the declarants state of mind:
R. v. Edgar
,
    2010 ONCA 529, 260 C.C.C. (3d) 1. It is perhaps unnecessary to add that where
    the basis upon which the prior statement is admitted is that it affords
    circumstantial evidence of the declarants state of mind, that state of mind
    must itself be relevant in the proceedings:
R. v. Mathisen
, 2008 ONCA
    747, 239 C.C.C. (3d) 63, at para. 104.

[64]

Within
    limits, prior consistent statements that are necessary to unfold the
    narrative of a case and make material events comprehensible may be admitted
    in evidence. This exception permits proof of how a complaint got before the
    court, even though how it did is not a material fact that will assist the trier
    of fact in evaluating the adequacy of the Crowns proof of guilt, or in
    determining whether a defence, justification or excuse raises a reasonable
    doubt. The admission of narrative permits the decision-maker to understand the
    chronological cohesion of the case:
R. v. F. (J.E.)
(1993), 85
    C.C.C. 457 (Ont. C.A.), at p. 474.

[65]

Evidence
    of prior consistent statements admitted under this exception is not evidence
    that can be used to prove the truth of what was said. Nor can the prior
    statements sponsor an inference that makes the case for the party adducing the
    statement more compelling. The prior statement is admitted to help the trier
    the fact understand the case as a whole:
R. v. R. (A.E.)
(2001), 156
    C.C.C. (3d) 335 (Ont. C.A.), at para 15.

[66]

Sometimes,
    a prior consistent statement admitted as narrative may be of service to the trier
    of fact in the assessment of the truthfulness or reliability of the declarant:
F.
    (J.E.)
, at p. 476;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R.
    788, at para. 39; and
R. v. Evans
, [1993] 2 S.C.R. 629, at para. 32.

The Opinion Rule

[67]

The
    law of evidence distinguishes between fact and opinion. The distinction seems
    more and ultimately one of convenience rather than of objective reality. All
    sensory data is mediated by our powers of perception, assimilation and
    expression. But the distinction remains and is expressed in the rule that
    generally, but not universally, excludes evidence of opinion.

[68]

Among
    the exceptions to the opinion rule are the opinions of experts. Duly qualified
    experts may testify about subjects that are within their field of expertise, logically
    relevant to a material issue in the proceedings, and outside the experience and
    knowledge of the trier of fact:
Mohan
, at p. 20.

[69]

Experts
    combine information accumulated from their own work and experience, marry it
    with evidence adduced through exhibits, admissions and the testimony of other
    witnesses in the proceedings, and express an opinion about a factual inference
    that should be drawn from the accumulated materials:
Abbey
, at para.
    71.  These opinions are evaluated by the trier of fact, like any other evidence
    admitted in the proceedings, in determining whether the allegations contained
    in the indictment have been proven beyond a reasonable doubt.

[70]

The
    factual premise or construct to which the expert applies his or her expertise
    must be established, however, by evidence that is otherwise properly admissible
    in the proceedings. Mere reliance by the expert on a state of facts as the
    basis for his or her opinion does not amount to evidence much less proof of
    those facts. For example, a psychiatrist proffers an opinion about criminal
    responsibility based on an account of events provided to him or her by an accused.
    The account relied upon must be established by other admissible evidence:
R.
    v. Abbey
, [1982] 2 S.C.R. 24, at p. 46 (
Abbey
82);
R. v. Boucher
,
    2005 SCC 72, [2005] 3 S.C.R. 499, at para. 31; and
R. v. D. (D.)
, 2000
    SCC 43, [2000] 2 S.C.R. 275, at para. 55. Where the factual premise of the
    experts opinion is not established by otherwise admissible evidence, the opinion
    is entitled to less, in some cases, to no weight:
Abbey
82, at p. 46;
    and
R. v. Lavallee
, [1990] 1 S.C.R. 852, at p. 893.

[71]

Deciding
    the admissibility of expert opinion evidence involves two steps. The first requires
    a determination of whether the conditions precedent to admissibility have been
    met. The second, only undertaken on satisfaction of the first, consists of a
    cost-benefit analysis that asks whether the benefits of receiving the evidence
    to a correct decision exceed the costs to the litigation process of admitting
    the evidence:
Abbey
, at para. 76.

[72]

The
    criteria applicable to the first step in the admissibility inquiry are:

i.

relevance;

ii.

necessity;

iii.

absence of an exclusionary rule; and

iv.

a properly qualified expert.

Mohan
, at p. 20; and
Abbey
, at paras.
    75 and 80.

[73]

Among
    the
Mohan
criteria, two are of particular importance in this case: the
    absence of an exclusionary rule, and a properly qualified expert.

[74]

The
    absence of an exclusionary rule refers to an exclusionary rule other than the
    opinion rule itself:
Abbey
, at para. 80. For example, expert opinion
    evidence of an accuseds disposition must not contravene the bad character
    rule.

[75]

Whether
    a proposed witness is a properly qualified expert about subject-matter that is
    properly the subject of expert opinion evidence is determined on a
voir
    dire
after counsel proffering the evidence has defined the nature and
    scope of the proposed opinion:
Abbey
, at paras. 62-63;
R. v.
    Marquard
, [1993] 4 S.C.R. 223, at pp. 242-244; and
R. v. McIntosh
(1997), 35 O.R. (3d) 97 (C.A.), at p. 104. The trial judges task extends
    beyond deciding whether the proposed expert is qualified to proffer an opinion.
    The judge should also determine the nature and scope of the expert evidence and
    ensure that the experts reach does not exceed his or her grasp or extend
    beyond boundaries established by the trial judge:
Abbey
, at para. 62;
R.
    v. Sekhon
, 2014 SCC 15, at paras. 46-47; and
Marquard
, at pp.
    242-244.

[76]

An
    expert may refer to and be cross-examined upon authoritative works in the
    field. But without express adoption of the content by the expert, the opinions
    expressed in the works cannot become expert evidence for the trier of fact to
    consider in reaching their decision:
Marquard
, at p. 251. A review,
    even an extensive review by an expert of literature in a related field does
    not, without more, permit the expert to proffer an opinion on a subject outside
    the area of the experts field of expertise:
Mathisen
, at para. 126.

[77]

Evidence
    that meets the
Mohan
criteria will not necessarily be received and
    available for consideration by the trier of fact. At the second stage, the
    trial judge exercises a gatekeeper function. The judge decides whether the
    expert opinion evidence is sufficiently beneficial to the trial process to
    warrant its admission despite the potential harm to that same process that may
    ensue from the introduction of that very evidence:
Abbey
, at para.
    76.  It is only where the benefits gained by the introduction of the evidence
    predominate over the costs associated with its introduction that the evidence
    will be admitted.

[78]

To
    determine the benefits associated with the introduction of expert opinion
    evidence, the judge considers the probative value of the evidence, the
    significance of and the issue to which the evidence is relevant. Potential
    probative value includes an assessment of the reliability of the evidence, not
    merely of its subject-matter, but also the experts methodology, expertise and
    objectivity:
Abbey
, at para. 87.

[79]

On
    the cost side, the trial judge considers the consumption of time, prejudice
    and confusion. The trier of fact may not be adequately equipped to effectively
    and critically assess the evidence. The underlying material may be complex, the
    witness jargon impenetrable, and the evidence resistant to effective cross-examination:
Abbey
, at para. 90.

The Principles
    Applied

[80]

As
    I will explain, I would give effect to this ground of appeal. Evidence of the
    complainants
utterances
during the seizure-like episode was not
    admissible as evidence of the truth of their contents, and thus could not be
    relied upon as independent corroboration of the complainants allegations.
    And Dr. Wolfes
opinion
about the nature of the seizure-like episode
    and its origins in the sexual assault alleged by the complainant was beyond the
    scope of his expertise and otherwise inadmissible for want of proof of
    essential foundational facts.

[81]

Evidence
    about the seizure-like episode of April 25, 2009 consisted of two parts.

[82]

Two
    witnesses, the complainants mother and the police officer who responded to a
    911 call, gave evidence about their observations of the incident. They
    described what the complainant did and what he said during the episode. No
    objection appears to have been taken to this evidence.

[83]

Dr.
    Wolfe, a clinical psychologist, who had never met or spoken to the complainant,
    gave evidence about the symptoms of NES, PTSD and their relation to the
    seizure-like episode. He characterised the episode as symptomatic of NES and
    the behaviour as causally connected to the alleged sexual assault. Trial
    counsel for the appellant opposed the admission of Dr. Wolfes evidence in its
    entirety.
[2]

[84]

The
    appellants objections on appeal extend both to the admissibility of the
    evidence about the seizure-like episode and to its use by the trial judge in
    finding the Crowns case against the appellant proven beyond a reasonable
    doubt.

[85]

The
admissibility
of the evidence about the seizure-like episode, both the
    accounts of the eyewitnesses and the opinion of Dr. Wolfe about its nature and
    relationship to the prior allegations, is the fundamental issue we are required
    to decide. A trier of fact, whether a judge or jury, is disentitled to rely on
    inadmissible evidence in reaching a conclusion about guilt.

[86]

In
    the absence of any objection to the relevance or materiality of the witnesses
    accounts of the seizure-like episode, it is helpful to begin with a
    consideration of the admissibility of the
utterances
of the
    complainant during the episode. When considered together with the complainants
    gestures at the time, the evidence appears to amount to at least an implied
    assertion of the sexual assault the complainant alleged the appellant committed
    nearly two years earlier.

[87]

Two
    admissibility rules confront the utterances made by the complainant during the
    seizure-like episode.

[88]

When
    the dots are connected, the complainants words, coupled with his actions
    during the seizure-like episode, amount to a statement consistent with his
    testimony at trial that the appellant, whom he described as uncle but not by
    name, had sexually assaulted him in a particular way.

[89]

As
    a prior consistent statement, the complainants utterances during the
    seizure-like episode were inadmissible unless they fell within an exception to
    the exclusionary rule:
Stirling
, at para. 5.

[90]

The
    only relevant exception under which the complainants utterances can gain
    admission is the narrative exception  to explain how the complaint got into
    the court system and afford some chronological cohesion to the story:
F.
    (J.E.)
, at para. 42.

[91]

To
    be admissible under the narrative exception, however, a prior consistent
    statement must be truly essential in unfolding the narrative of how the
    allegations got before the courts:
R. (A.E.)
, at para. 15; and
F.
    (J.E.)
, at para. 33. The utterances made during the seizure-like episode
    are not truly essential to the unfolding of the narrative. The episode occurred
after
the complainant had made his second police statement and after
    the appellant had been charged with the offences for which he was being tried.

[92]

Further,
    even if the utterances during the seizure-like episode were admissible under
    the narrative exception to the prior consistent statement rule, admission on
    this basis neither proves the truth of what was said, nor furnishes a basis for
    any inference that the case for their truth is more compelling. Narrative
    enters merely to aid in understanding the case as a whole:
R. (A.E.)
,
    at para. 15.

[93]

The
    hearsay rule extends its exclusionary reach to implied assertions and requires
    them to shelter under a traditional or the principled exception to the rule if
    they are to be received at trial:
Baldree
, at paras. 48 and 78.

[94]

The
    record reveals no application by the trial Crown to have the assertions implied
    in the complainants utterances received as evidence of the truth of the facts
    they imply. Thus the trial record yields no basis upon which we could conclude
    that the factual predicate necessary to engage a traditional or the principled
    exception to the hearsay rule has been established on the balance of
    probabilities.

[95]

In
    the traditional exception relating to spontaneous statements, reliability is
    established by the spontaneous nature of the statement and the absence of any
    time for concoction. Necessity is based on expediency: the absence of any other
    equally satisfactory source of evidence from the declarant or elsewhere. But
    the statements admitted under this collection of exceptions refer to a
    then-existing state of physical or mental condition, not as here, one about an
    event that allegedly had occurred two years earlier.

[96]

For
    similar reasons, the utterances lack sufficient threshold reliability to
    justify their reception under the principled exception to the hearsay rule.

[97]

In
    the result, even if the utterances portion of the seizure-like episode was
    properly admitted under the narrative exception to the prior consistent
    statement rule, the utterances were not admissible to prove the truth of their
    contents, the purpose for which the trial judge used them to corroborate the
    complainants account.

[98]

The
    opinion evidence of Dr. Wolfe should have not been admitted essentially for two
    reasons.

[99]

First,
    Dr. Wolfe, a clinical psychologist with neither practical nor academic
    expertise in NES episodes, proffered an opinion beyond the scope of his
    expertise.

[100]

Dr. Wolfe read
    an article, one survey article that critically reviewed existing literature on
    non-epileptic seizures and child sexual abuse. The article concluded that it
    was premature to draw
any
definitive conclusions regarding the
    relationship between child sexual abuse and non-epileptic seizures in
    adulthood. A review of a single survey article did not qualify Dr. Wolfe to
    give an expert opinion outside the field of his expertise:
Mathisen
,
    at para. 126.

[101]

Second, critical
    to Dr. Wolfes opinion were several foundational facts:

i.

that the episode, was in fact, a non-epileptic seizure;

ii.

that the assertions implied in the utterances were true; and

iii.

that utterances made during such episodes are reliable.

There was no admissible evidence of any of these
    foundational facts. In the absence of this evidence, the opinion of Dr. Wolfe
    should not have been admitted.

CONCLUSION

[102]

The trial judge admitted
    and relied upon evidence that should not have been received. This evidence was
    critical to her acceptance of the testimony of the complainant. Without this
    evidence, I cannot say that the trial judges conclusion would necessarily have
    been the same.

[103]

My conclusion on
    this ground of appeal renders it unnecessary to consider the other grounds
    advanced on the appellants behalf.

[104]

I would allow
    the appeal, set aside the convictions and order a new trial.

Released: August 27, 2014 (DW)

David
    Watt J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree C.W. Hourigan J.A.





[1]
The complainant was seven years old when the relevant events allegedly
    occurred. He was 12 years old when he testified outside the courtroom at trial
    on a promise to tell the truth.



[2]
Dr. Wolfe also gave evidence about delayed, incremental and inconsistent
    disclosure by victims of child sexual abuse. This portion of his opinion was
    challenged as unnecessary. The challenge to his opinion about NES was based on
    his lack of qualifications to proffer the opinion.


