



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Suarez-Noa, 2017 ONCA 627

DATE: 20170728

DOCKET: C61503

Doherty, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Haiden Suarez-Noa

Respondent

John Patton and Philippe G. Cowle, for the appellant

Heather Pringle and Charn Gill, for the respondent

Heard:  June 14, 2017

On appeal from the acquittal on a charge of second degree
    murder, and the conviction for the included offence of manslaughter, entered by
    Justice Robert B. Reid, of the Superior Court of Justice, sitting with a jury,
    on November 27, 2015.

Doherty J.A.:


I



[1]

The respondent, Mr. Suarez-Noa, stabbed and killed Ms. Tanya Cowell.  He
    was charged with second degree murder.  At trial, Mr. Suarez-Noa admitted to killing
    Ms. Cowell, but claimed that he did not have the intent required for murder, or
    alternatively that he acted under provocation.  The jury returned a verdict of
    not guilty of second degree murder, but guilty of manslaughter.  The trial
    judge imposed an effective sentence of 11 years.

[2]

The Crown appeals from the acquittal, advancing two grounds:

·

Did the trial judge err in law in leaving the defence of
    provocation with the jury?

·

Did the trial judge err in law in admitting the expert evidence
    of Dr. Gojer, or alternatively if the expert evidence was admissible, did Dr.
    Gojer go beyond the proper limits of that evidence in his testimony?

[3]

For the reasons that follow, I would allow the appeal and order a new
    trial on the charge of second degree murder.  Significant parts of Dr. Gojers
    evidence were inadmissible.  Those parts of his evidence had a prominent role
    at the trial.  The Crown has satisfied me that Dr. Gojers evidence may very
    well have affected the outcome at trial.

[4]

I would reject the first ground of appeal advanced by the Crown.  I
    will, however, address that ground as the availability of the defence of
    provocation may arise on the retrial.  The ground of appeal also raises an
    important issue relating to Crown appeals from acquittals.


II



[5]

Mr. Suarez-Noa and Ms. Cowell began dating in July 2011.  Their
    relationship was fractious and volatile from the outset.  They argued constantly,
    often by way of profanity laced text messaging.  In September 2012, they had a
    baby boy.  If anything, their relationship became more strained after their
    sons birth.

[6]

Mr. Suarez-Noa and Ms. Cowell shared Ms. Cowells apartment in Hamilton,
    Ontario.  Ms. Cowell ordered the respondent out of the apartment on two
    occasions in February 2013.  On both occasions, she invited him to return.  Ms.
    Cowell ordered Mr. Suarez-Noa out of the apartment on a third occasion on March
    8, 2013.  That day, they had a long argument via text messaging.  Ms. Cowell
    told Mr. Suarez-Noa that the relationship was over.  He believed her.

[7]

The next day, March 9, 2013, Ms. Cowell texted Mr. Suarez-Noa baby
    wants daddy home.  Mr. Suarez-Noa returned to the apartment on the evening of
    March 9.

[8]

In the late evening of March 9, the neighbours heard loud arguing in the
    apartment.  One neighbour heard a female scream and a male use the word
    bitch.

[9]

On March 10, 2013, Mr. Suarez-Noa went to the police and told them that
    he had killed his girlfriend.  The police went to the apartment and found Ms.
    Cowells body.

[10]

Ms.
    Cowell had 11 stab wounds.  In some of the wounds, the weapon had penetrated to
    the bone.  Four of the stab wounds were independently lethal.  One blow struck
    Ms. Cowell in the back.  She had no defensive injuries.  Mr. Suarez-Noa had no
    injuries of any kind.

[11]

The
    investigation of the apartment revealed that the body had been moved post-mortem
    and that an attempt had been made to clean up some of the blood in the
    apartment.

[12]

The
    Crown led evidence of Mr. Suarez-Noas behaviour immediately after the
    killing.  He took a picture of the dead body at about 11:00 p.m.  Shortly
    afterward, he made several calls to his bank, his mother, and his ex-wife.  He
    also Googled homicide in Canada jail time and criminal sentencing in
    Canada.

[13]

When
    Mr. Suarez-Noa turned himself in to the police, about 12 hours after the
    homicide, he had Ms. Cowells blood on his feet and pants.  He told the police
    that she [Ms. Cowell] attacked me and I lost it.  He stated that he pretty
    much defended myself.  He also said he murdered his wife.

[14]

Mr.
    Suarez-Noa testified.  He described the difficult nature of the relationship
    with Ms. Cowell.  He indicated that they had a heated argument on March 8.  He
    thought the relationship was over and decided to begin to look for a new place
    to live in Guelph, Ontario.

[15]

On
    March 9, he received a text from Ms. Cowell, stating baby wants daddy home.  Mr.
    Suarez-Noa was relieved to get this message, believing that perhaps he and Ms.
    Cowell could work things out.  He drove to the apartment on the evening of
    March 9, arriving at 8:00 or 9:00 p.m.

[16]

According
    to Mr. Suarez-Noa, he, Ms. Cowell and their baby watched a movie.  Afterward,
    they gave the baby a bath and fed him.  The three were together in the living
    room in what Mr. Suarez-Noa described as a happy moment.

[17]

Mr.
    Suarez-Noa testified that they had a discussion about Mr. Suarez-Noa using Ms.
    Cowells car.  He said it was not an argument.  He then went into the kitchen
    to make a sandwich.

[18]

Mr.
    Suarez-Noa indicated that he was in the kitchen making a sandwich with a knife
    in his hand when Ms. Cowell came into the kitchen, said something to him and
    left the kitchen.  Mr. Suarez-Noa did not hear what she said.  He followed Ms.
    Cowell into the living room to ask her what she had said.  He had the knife in
    his hand.  Mr. Suarez-Noas testimony in-chief continued:

I actually didnt get it, right?  So I was  I walked towards
    her and, this is when everything happened, okay, that moment.  She just start
    attacking me.  Well, well maybe, attacking  yelling.  Attacking, yelling at
    me.  All of a sudden she was like, I cant do this no more.  I cant do this no
    more.  I need my life back.  And for sure I was not expecting that, like.  I
    was like, whoa, wow.  I didnt know what to do.  I actually didnt know what to
    do.  I was expecting her to ask me for help for something.  I dont know.
And
    then she said, I want my life back, Im moving out.  Im moving out, Im taking
    [our son] with me.  I remember I told her  I think I was still trying to
    recover.  I was like, you cant do that.  You just cant do that. You just
    cant move  you cant do that.  You just cant move away, and I said you cant
    do that.  She said, and Im sorry for the words, I can do whatever fuck I
    want.  Im Canadian and youre a fucking immigrant.  Im moving away, Im
    taking [our son] with me and Im going to do everything in my power for you not
    to see him again and you will have to support me for the rest of my life.  And
    I lost it, okay?  I lost it.  I couldnt handle those words.  I lost it, I
    flipped.


Q.  What did you do?

A.  What did I do?  Were here today.  I lost it, okay?  I
    stabbed her.  I lost my temper for seconds and, and I stabbed her.  I just
    couldnt handle those words, I just  my son, away?  It didnt  I would be  I
    would do anything I can do for you not to see him again.  Who says those
    things?  [Emphasis added.]

[19]

Mr.
    Suarez-Noa recalled stabbing Ms. Cowell at least twice.  He had trouble recalling
    the sequence of events after he started to stab her.  He recalled dropping the
    knife and trying to help Ms. Cowell.  He remembered blood everywhere and
    watching Ms. Cowell die.

[20]

Mr.
    Suarez-Noa packed his sons formula and diapers and drove to Guelph with his
    son.  According to Mr. Suarez-Noa, he was on autopilot.  He could not really
    say why he decided to drive to Guelph with his son, except that he routinely
    drove to Guelph.

[21]

In
    cross-examination, Mr. Suarez-Noa denied that he became extremely angry with
    Ms. Cowell immediately before he killed her.  He insisted that he acted in
    impulse, stating:

I just told you that I lost it for the things that she said to
    me.  Yes, I lost it.


III



did the trial judge err in leaving
    the defence of provocation with the jury?

[22]

The
    partial defence of provocation is set out in s. 232 of the
Criminal Code
,
    R.S.C., 1985, c. C-46.  The relevant parts of the provision as they applied to
    this case are set out below:

232(1) Culpable homicide that otherwise would be murder may be
    reduced to manslaughter if the person who committed it did so in the heat of
    passion caused by sudden provocation.

(2) A wrongful act or an insult that is of such a nature as to
    be sufficient to deprive an ordinary person of the power of self-control is
    provocation for the purposes of this section if the accused acted on it on the
    sudden and before there was time for his passion to cool.
[1]

[23]

At
    trial, it was common ground that the defence of provocation was available based
    on the appellants evidence and, specifically, his evidence about Ms. Cowells
    comments quoted above (para. 18).  Crown counsel made extensive submissions
    about the content of the jury instruction on provocation.  Crown counsel also argued
    at length in her closing that the jury should reject Mr. Suarez-Noas evidence
    and the provocation claim based on that evidence.  At no point in the trial did
    the Crown suggest that provocation should not be left with the jury.

[24]

It
    is also noteworthy that, unlike many cases, Crown counsel had advance notice of
    the exact evidentiary basis for the provocation claim.  Before the defence
    opened to the jury, counsel had provided Crown counsel with a copy of Dr.
    Gojers report.  In that report, Dr. Gojer quoted the specific allegedly provocative
    comment Mr. Suarez-Noa said Ms. Cowell uttered immediately before he attacked
    her.  Dr. Gojer referred to this comment as a potential trigger in respect of
    the defence of provocation.  The Crown knew, from Dr. Gojers report, the
    precise nature of the provocative act relied on by the defence.

[25]

On
    appeal, the Crown resiles from the position it took at trial.  The Crown now
    argues that on the evidence, there was no air of reality to the provocation
    defence and that the trial judge erred in law in leaving the defence with the
    jury.

May the Crown argue that provocation should not have been left
    with the jury?

[26]

The
    Crown submits that if there was no air of reality to the defence of
    provocation, the trial judge erred in law in leaving the defence with the jury
    regardless of the position taken by the Crown at trial. Counsel acknowledges
    that the Crowns position at trial is a factor to be considered in determining
    whether there was an air of reality to the defence, but argues that the Crowns
    position at trial cannot foreclose the ground of appeal advanced here.

[27]

Crown
    counsel makes two submissions in support of his position.  First, he points to
    s. 676, which gives the Crown a right of appeal against a verdict of acquittal
    on questions of law alone.  He notes that the section does not qualify that
    right based on the position the Crown may have taken at trial.  Second, counsel
    refers to cases in which appellate courts on appeals from conviction have allowed
    the Crown as respondent to argue against the availability of the defence of
    provocation despite the Crown at trial having accepted that the defence was
    available.

[28]

The
Criminal Code
provision does not assist the Crown.  Section 676 gives the
    Crown a right of appeal on questions of law alone.  The section does not,
    however, restrict an appellate courts power on appeals brought by the Crown.  The
    section speaks only to what the Crown can appeal, not the manner in which an
    appellate court may exercise its powers on a Crown appeal from acquittal.  To
    take a simple example, no one would suggest that s. 676 gives the Crown the
    right to have a moot appeal determined on the merits simply because that moot appeal
    raises a question of law alone.  An appellate court would maintain its discretion
    to decline to hear a moot appeal even though the appeal was brought by the
    Crown. In the same way, s. 676 does not leave an appellate court powerless in
    the face of a Crown appeal that constitutes an abuse of the appellate process.

[29]

The
    case law relied on by the Crown is distinguishable. Those cases involved appeals
    from conviction in which the accused argued that reversible error arose either
    from the failure to leave provocation as a defence, or from the jury
    instruction on provocation. In those cases, it was open to the Crown to argue
    that provocation should not have been left with the jury, even if the Crown
    took a different position at trial because in making that argument, the Crown did
    not seek to put the accused in jeopardy for a second time. Rather, the Crown argues
    that the error relied on by the accused caused no substantial wrong or
    miscarriage of justice, because on a proper application of the law, provocation
    should never have been left with the jury in the first place. The distinction between
    the two positions lies in the difference between an argument demonstrating the
    harmlessness of an error made at trial, and an argument said to justify the
    retrial of an acquitted accused: see e.g.
R. v. Flegel
(2005), 196
    C.C.C. (3d) 146 (Ont. C.A.); and
R. v. Tremblay
, 2007 QCCA 696, 50
    C.R. (6th) 349.

[30]

There
    is, however, a substantial body of case law dealing with Crown appeals that argues
    strongly against the Crown being allowed to advance this ground of appeal.  I
    begin with
Wexler v. The King
, [1939] S.C.R. 350.  In
Wexler
,
    the accused was charged with murder.  At trial, the Crown argued that he had
    intentionally shot the deceased.  The accused testified that the shooting was
    accidental.  The jury acquitted and the Crown appealed.

[31]

On appeal, the Crown argued that the
    trial judge had erred in law in failing to put a second factual and legal basis
    for liability to the jury.  The Crown at trial had not argued that this
    alternative theory should be put to jury. The Quebec Court of Appeal allowed
    the Crown appeal and ordered a new trial.  The Supreme Court of Canada
    unanimously allowed the further appeal and restored the acquittal.

[32]

There are three judgments in
Wexler
.  All stand firmly against the Crowns use of its right of
    appeal to secure a retrial based on the theory or legal argument not advanced
    at the first trial.

[33]

Crocket J. put it this way, at pp.
    357-58:

To subject him [the accused] now,
    after he has been put in jeopardy, taken the stand in his own behalf and been
    acquitted on that indictment, to a new trial thereon on the ground that he
    might have been convicted of manslaughter if the Crown counsel had not failed
    to put this feature of the case forward on the trial would, it seems to me with
    all respect, be such a manifest injustice as Parliament could not well be
    deemed to have intended when it enacted this drastic amendment to the
Criminal
    Code
.
[2]

[34]

Wexler
has been applied in the Supreme Court in cases in which the Crown has sought to
    advance on appeal a different legal or factual basis for conviction than was
    advanced at trial:  see
Savard and Lizotte v. The King
, [1946] S.C.R.
    20, at p. 37; and
R. v. Penno
, [1990] 2 S.C.R. 865, at p. 895.  This
    court has followed
Wexler
:  see e.g.
R. v. Varga
(1994), 90
    C.C.C. (3d) 484, at p. 494; and
R. v. Elms
(2006), 217 C.C.C. (3d) 217,
    at pp. 223-24, as have other appellate courts:  see
R. v. Nguyen
, 2008
    SKCA 160, 240 C.C.C. (3d) 39, at paras. 37-42; and
R. v. Merson
(1983), 4 C.C.C. (3d) 251 (B.C.C.A.), at pp. 272-73.

[35]

In
Varga
, a Crown appeal, the Crown argued that the trial judge had
    improperly admitted certain evidence.  In support of this ground of appeal, the
    Crown advanced an argument that had not been made at trial.  In dismissing the
    appeal, this court observed, at p. 494:

A Crown appeal cannot be the means whereby the Crown puts
    forward a different case than the one it chose to advance at trial.
It
    offends double jeopardy principles, even as modified by the Crowns right of
    appeal, to subject an accused, who has been acquitted, to a second trial based
    on arguments raised by the Crown for the first time on appeal.
Double
    jeopardy principles suffer even greater harm where the arguments advanced on
    appeal contradict positions taken by the Crown at trial.  [Emphasis added.]

[36]

The
    unfairness to an accused in allowing the Crown to advance a contradictory
    position on appeal is exacerbated in this case by the nature of the Crowns
    argument supporting the new position it takes on appeal.  The Crown argues that
    the court should take this case as an opportunity to narrow the meaning of the
    words wrongful act or insult in cases involving domestic violence in which an
    accused raises the provocation defence.  The Crowns position is made clear in
    its factum:

Although the courts have consistently recognized the
    potential for violence in our hearts it is time that they stop.
People
    are allowed to leave relationships.  They are allowed, as well, a wide range of
    freedom of expression in doing so.  There is a public interest in fostering
    emotional control in failing intimate relationships.  In this context, the
    recipient of racially tainted insults and threats of restricted access to
    children cannot be permitted to respond with physical, let alone lethal,
    violence. [Emphasis added; citations omitted.]

[37]

The
    Crown invites this court to reinterpret the phrase, wrongful act or insult to
    exclude the possibility that insults alone can amount to a provocative act in the
    context of domestic disputes.  The Crowns position is consistent with the
    amendments made to s. 232 by Parliament in 2015.  No one, however, suggests
    that the amendments apply in this case: see e.g.
R. v. Dineley
, 2012
    SCC 58, [2012] 3 S.C.R. 272, at paras. 16-18.  The Crowns position is contrary
    to established authority interpreting s. 232 as it read prior to 2015: see
R.
    v. Thibert
,
[1996] 1 S.C.R. 37, at paras. 22-24; and
R. v. Tran
,
2010 SCC 58, [2010] 3 S.C.R. 350, at
    para. 29.

[38]

I
    think it would be doubly unfair to allow the Crown to not only advance a
    position on appeal that contradicted the position taken at trial, but to also
    advance a position calling on this court to reinterpret s. 232 so as to
    eliminate a defence that was available as the section was interpreted at the
    time of the trial.

[39]

I
    would not allow the Crown to argue that the defence of provocation should not
    have been left with the jury at trial.  I would dismiss this ground of appeal
    on that basis.

Was there an air of reality to the provocation defence?

[40]

Assuming
    that the Crown should be allowed to raise this argument on appeal, I am
    satisfied that the defence was properly left with the jury on the evidence
    adduced at trial.

[41]

The
    defence of provocation must be left with a jury when on the totality of the
    evidence there is a basis upon which a reasonable jury could have a reasonable
    doubt in respect of each of the constituent elements of the defence. This is
    sometimes referred to as the air of reality test:
R. v. Cinous
, 2002
    SCC 29, [2002] 2 S.C.R. 3, at para. 54.  As explained in
R. v. Cairney
,
    2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21:

[T]he air of reality test [is not] intended to assess whether
    the defence is likely, unlikely, somewhat likely, or very likely to succeed at
    the end of the day.  The question is whether a properly instructed jury acting
    reasonably could have a reasonable doubt as to whether the elements of the
    defence of provocation are made out. The trial judge may engage in a limited
    weighing of the totality of the evidence to determine if a jury acting
    reasonably on that evidence could draw the inferences necessary to have a
    reasonable doubt as to whether the accused is guilty of murder, on the basis of
    the defence of provocation [Citations omitted].

[42]

In
    this case, the evidentiary basis for the provocation defence came largely from
    the evidence of Mr. Suarez-Noa. In considering whether the defence should be
    left, the trial judge must assume the truth of that evidence: see
R. v. Pappas
,
    2013 SCC 56, [2013] 3 S.C.R. 452, at para. 27.

[43]

Provocation
    has both an objective and subjective component. The objective component
    captured by the ordinary person inquiry recognizes that there is a minimum
    level of self-control demanded of all persons in the community. An accused who
    is in fact provoked by an insult or wrongful act that would not have caused the
    ordinary person to lose control and act on the sudden while out of control
    has no defence: see
Thibert
, at para. 23; and
Tran
, at paras.
    32-34.  The defence of provocation can be left with the jury only if there is
    an air of reality to both the objective and subjective components of the
    defence.

Was there evidence of an insult capable of depriving the
    ordinary person of self-control?

[44]

The
    ordinary person for the purposes of provocation is described in
Thibert
,
    at para. 18:

The ordinary person must be of the same age, and sex, and
    share with the accused such other factors as would give the act or insult in
    question a special significance and have experienced the same series of acts or
    insults as those experienced by the accused.

[45]

In
    the present case, the prior relationship of Mr. Suarez-Noa and Ms. Cowell and
    the immediately preceding events of the evening of March 9 provide the context
    in which the ordinary person inquiry must be conducted. In my view, the words
    Mr. Suarez-Noa testified Ms. Cowell uttered immediately before the attack could
    reasonably be viewed as a denigrating taunt depicting Mr. Suarez-Noa, because
    he was an immigrant, as worthless and powerless to stop Ms. Cowell from doing
    whatever she wanted to do to him, including taking his son permanently out of
    his life and requiring Mr. Suarez-Noa to financially support her indefinitely.
    The words, in the context in which they were uttered, qualify as injuriously
    contemptuous speech or behaviour intended to wound self-respect; an affront; indignity:
Thibert
, at para. 8.

[46]

The
    question whether the insult was sufficient to deprive an ordinary person of the
    power of self-control presents the most difficult feature of the provocation
    inquiry. As indicated in
Pappas
,
at para. 33:

[W]hat would suffice to cause an ordinary person to lose
    self-control is a question of degree that the jury is well placed to decide, and
    one which, in cases of doubt, should be left to the jury.

[47]

Placing
    the evidence in its most favourable light for the defence, Mr. Suarez-Noa badly
    wanted to maintain his relationship with Ms. Cowell and their son. On his
    evidence, on the evening of the homicide, Ms. Cowell had invited him back into
    the relationship specifically acknowledging their sons need for his father. On
    Mr. Suarez-Noas evidence, the three enjoyed a happy family evening together. He
    was optimistic. On his evidence, Ms. Cowell suddenly, and without warning, once
    again ended the relationship.  She verbally attacked and belittled Mr.
    Suarez-Noa, essentially suggesting that because he was an immigrant, he was
    powerless to do anything to stop her from ruining his life by taking their son
    away forever and making him support her forever.

[48]

There
    is no doubt that Ms. Cowell had every right to change her mind and end the
    relationship. She had every right to indicate she would take whatever steps
    were available to her to secure her parental and financial rights. There is
    also no doubt that nothing said by Ms. Cowell justified (the word used by the
    Crown in its factum) Mr. Suarez-Noas reaction to Ms. Cowells words.
    Provocation, of course, does not justify conduct, but rather partially excuses
    conduct. Charron J., in
Tran
, at
    para. 29,
aptly described the operation of the ordinary person
    component of the provocation test in the context of a marital break-up:

In other words, while one spouse undoubtedly has a legal right
    to leave his or her partner, in some circumstances the means by which that
    spouse communicates this decision may amount in fact to an insult, within the
    ordinary meaning of the word. However, to be recognized at law, the insult must
    be of sufficient gravity to cause a loss of self-control, as objectively
    determined. The fact that the victim has the legal right, in the broad sense
    of the term, to leave the relationship is an important consideration in the
    assessment of this objective standard.

[49]

On
    the totality of the evidence, and especially Mr. Suarez-Noas testimony, I
    regard this as a close case.  Bearing in mind the command in
Pappas
, at para. 33
, I am satisfied that there
    was a basis upon which a reasonable jury could have a doubt as to whether the
    insults directed at Mr. Suarez-Noa were, in the context, capable of depriving
    an ordinary person of self-control.

Was there evidence that Mr. Suarez-Noa acted in response to
    the provocation on the sudden before there was time for his passion to cool?

[50]

The
    subjective components of the provocation defence depend on the accuseds actual
    state of mind and reaction to the alleged assault. They can be considered
    together.

[51]

Mr.
    Suarez-Noas testimony provides grounds upon which a reasonable jury could have
    a doubt as to whether the alleged insult by Ms. Cowell caused Mr. Suarez-Noa to
    lose control and attack Ms. Cowell. According to Mr. Suarez-Noas evidence, the
    attack followed immediately upon the utterance of the alleged insult. Based on
    this evidence, and to some degree the nature of the attack, a jury could have a
    doubt as to whether Mr. Suarez-Noa lost self-control and reacted to the insult
    on the sudden before there was time for his passion to cool.

[52]

In
    arguing that there was no evidentiary basis for the subjective components of
    provocation, the Crown points to evidence of Mr. Suarez-Noas goal-oriented conduct
    in the minutes and hours after the killing, his relatively clear memory of the
    events, and his initial statement to the police indicating that he acted in
    self-defence. The Crown argues that this evidence considered cumulatively
    eliminates any air of reality to the provocation defence.

[53]

The
    parts of the evidence martialed by the Crown could be, and were, used by the
    Crown at trial to argue against the provocation defence. For example, Mr.
    Suarez-Noas initial statement to the police that he acted in self-defence could
    certainly give the jury cause to question the veracity of Mr. Suarez-Noas
    description of the events at trial.

[54]

The
    evidence relied on by the Crown does not, however, overcome the air of
    reality generated principally by Mr. Suarez-Noas testimony. It was for the
    jury to decide whether to give effect to that defence having regard to the entirety
    of the evidence.


IV



The admissibility of Dr. Gojers evidence

Dr. Gojers opinions

[55]

The
    defence proffered the evidence of Dr. Julian Gojer, a psychiatrist.  Dr. Gojer
    had interviewed Mr. Suarez-Noa for several hours, reviewed the results of
    psychological testing, read the transcript of the preliminary inquiry, and
    reviewed various materials relevant to the trial including parts of Mr.
    Suarez-Noas video statement to the police.  Dr. Gojer provided defence counsel
    with a lengthy report.  The parties argued the admissibility of Dr. Gojers evidence
    on the basis of the contents of the report.  The report itself was not admitted
    into evidence.

[56]

The
    defence sought to elicit three opinions from Dr. Gojer:

·

Mr. Suarez-Noa did not suffer from any major mental illness.

·

Dissociation is a medically recognized response to emotionally
    charged events that can account for a persons inability to remember some or
    all of those events.  Mr. Suarez-Noas professed inability to remember all but
    two of the stab wounds could be explained by dissociation.

·

Having regard to Suarez-Noas description of the tensions in his
    relationship with Ms. Cowell, Mr. Suarez-Noas stress, anxiety and depression
    and the nature of their relationship immediately before the relevant events, Ms.
    Cowells comments calling Mr. Suarez-Noa an immigrant and threatening to take
    their son could have triggered a sudden outburst of intense emotion from Mr.
    Suarez-Noa culminating in a spontaneous impulsive act of violence.

[57]

The
    trial judge ruled that the defence could lead evidence of all three opinions
    from Dr. Gojer.  The Crown argues on appeal that none were admissible.  I
    regard the third opinion as the central concern on this ground of appeal.  I
    will address the first two only briefly.

The absence of evidence of a major mental disorder

[58]

There
    was no suggestion that Mr. Suarez-Noa suffered from any mental disorder that
    had any relevance to his culpability.  Dr. Gojers evidence that Mr. Suarez-Noa
    did not suffer from any major mental illness had little, if anything, to do
    with the case.  However, as the Crown candidly acknowledged at trial, and on
    appeal, that opinion did not hurt the case for the Crown and may well have
    assisted the Crown in the sense that it removed one possible explanation for
    Mr. Suarez-Noas vicious attack on Ms. Cowell that may have occurred to the
    jury.  This part of Dr. Gojers evidence did not prejudice the Crown.

The evidence of dissociation

[59]

Dr.
    Gojers evidence offering dissociation as a medical explanation for memory loss
    was properly the subject of expert medical opinion.  The evidence offered a
    medical explanation for Mr. Suarez-Noas professed inability to remember
    certain details, although Dr. Gojers inability to offer an opinion as to
    whether Mr. Suarez-Noa had dissociated reduced the evidentiary value of that
    opinion.

[60]

On
    appeal, the Crown does not suggest that evidence of dissociation was not
    properly the subject of expert medical opinion.  Instead, the Crown argues that
    the evidence should not have been received because of the confusion that the
    Crown claims the use of the word dissociation created in the proceedings. 
    The Crown does not point to any confusion in Dr. Gojers evidence, but instead
    points to the alleged misuse of the term by defence and Crown counsel and the trial
    judge.  However, the Crown does not argue that any of this confusion led to
    reversible error by the trial judge in his instructions to the jury.

[61]

As
    I understand the submission, the Crown argues that the trial judge should have
    anticipated the potential confusion caused by the word dissociation and ruled
    that Dr. Gojer could not give the opinion concerning dissociation to avoid this
    subsequent confusion.  I cannot accept this argument.  I see no inherent risk
    of confusion in the use of the word dissociation.  Dr. Gojers evidence on
    this point was not confusing.  His evidence cannot be rendered inadmissible by
    virtue of the subsequent misuse of the word by counsel or the trial judge.

[62]

It
    was within the discretion of the trial judge to admit Dr. Gojers evidence
    explaining dissociation and memory loss.  Admittedly, the evidence had limited probative
    value as Dr. Gojer was unable to opine as to whether Mr. Suarez-Noa had
    dissociated at the time of the stabbing.  However, that very same limited
    probative value which on the one hand argues against admitting the evidence,
    conclusively determines the absence of any prejudice to the Crown flowing from the
    admission of the evidence.

The evidence that Mr. Suarez-Noa was provoked by Ms. Cowells
    comment

[63]

The
    third opinion advanced by Dr. Gojer is the primary focus of this ground of
    appeal.  That opinion as set out in Dr. Gojers report is as follows:

The second issue, i.e. provocation, has both subjective and
    objective components.  The objective components are legally determined.  The
    provocation in this case being the comments made by Ms. Cowell to Mr.
    Suarez-Noa.  This is dependent on whether he is believed and whether the
    comments satisfy the objective test for provocation.  He reports reacting to
    these comments on impulse.  This too is dependent on whether he is believed. 
    Lastly, from a subjective point of view, his reported history of feeling
    deceived by a partner in the past with respect to pregnancy issues, his report
    believing that Ms. Cowell lied to him as to when she became pregnant and her
    motivations for becoming pregnant are important.
Lastly, the stress
    related anxiety and depression, and the conversations in the days before the
    alleged offence culminating in the reports that she wanted to leave him, called
    him a fucking immigrant and that she would do what it took to prevent him from
    seeing his son, could have the ability to trigger a sudden outburst of intense
    emotions that culminated in an impulsive act in a person with no prior criminal
    history of aggression or violence.
[Emphasis added.]

[64]

Dr.
    Gojers opinion went directly to the existence of the subjective component of
    the defence of provocation.  In Dr. Gojers view, the nature of Mr.
    Suarez-Noas prior domestic relationships, his mental state (stress, anxiety,
    depression), the interactions with Ms. Cowell in the days immediately before
    the homicide and the fucking immigrant comment taken together could have
    triggered a sudden outburst of intense emotions that culminated in an
    impulsive act.

[65]

At
    trial, the Crown objected to Dr. Gojer advancing this opinion arguing that the
    opinion was beyond the purview of the expert as it was directed at the
    ultimate issue as to what the jury will be deciding.  Crown counsel further
    argued that this part of Dr. Gojers proposed evidence was unnecessary in that
    it did not provide insight into Mr. Suarez-Noas behaviour likely to be outside
    the ordinary experience and knowledge of the jury.

[66]

The
    defence argued that Dr. Gojer, as a psychiatrist, was entitled to offer
    opinions on Mr. Suarez-Noas mental state as they related to the subjective
    element of provocation.  The defence suggested that Dr. Gojer could explain how
    conditions such as anxiety and depression could factor into an assessment
    of Mr. Suarez-Noas reaction to the alleged insult by Ms. Cowell.

[67]

In
    ruling that Dr. Gojer could give an opinion on the subjective component of
    provocation, the trial judge said:

The proposed opinion of Dr. Gojer includes a list of anxiety;
    depression; the conversations that the accused and the deceased had shortly
    before the event; comments that were made on March 9th between them; and opines
    that the combination of those items could have triggered an emotional reaction
    which Dr. Gojer indicates is, or could be, a sudden outburst of intense
    emotions that culminated in an impulsive act of a person with no prior criminal
    history of aggression or violence.
In other words, he is not providing a
    diagnosis, but a medical opinion of a possible explanation for conduct.
It is not clear to me whether that evidence has a direct impact on the issue of
    provocation and alternatively, the issue about the mental element required for
    murder.
But I do consider it necessary for the jury to know that there is
    the possibility of a medically recognized situation subjectively under the
    circumstances listed.
[Emphasis added.]

[68]

Dr.
    Gojer testified at length.  He summarized the statements made to him by Mr.
    Suarez-Noa.  Those statements concerned Mr. Suarez-Noas prior domestic
    relationships, his relationship with Ms. Cowell, and the events on the night
    that Ms. Cowell died.  Dr. Gojer interspersed his summaries of Mr. Suarez-Noas
    statements with references to what he believed must have been going on in the
    mind of Mr. Suarez-Noa at various times during the events recounted by Mr.
    Suarez-Noa.  For example, Dr. Gojer opined that Mr. Suarez-Noas prior
    relationships might have added to the sensitivity that he brought to his
    relationship with Ms. Cowell.  Similarly, he believed that certain trust
    related issues may have been in the back of his mind when Mr. Suarez-Noa was dealing
    with Ms. Cowell.

[69]

Eventually,
    defence counsel asked the following question:

And so, what do you see in terms of his emotional experience
    along that path that factors into what actually occurred?  Or, what he reports
    occurred?

[70]

A
    two-page monologue by Dr. Gojer flowed from this question.  In the monologue,
    he described Mr. Suarez-Noa as vulnerable, sensitive, fragile and [f]eeling a
    little anxious [f]eeling a little depressed.  Dr. Gojer testified that none
    of this amounted to a major mental illness.

[71]

Referring
    to Mr. Suarez-Noas response to Ms. Cowells comments describing Mr. Suarez-Noa
    as an immigrant who was powerless to stop her from taking his son, Dr. Gojer
    opined:

[M]y interpretation would be that he would have likely felt
    powerless and helpless.  And with that personality that we describe of being
    more passive as opposed to being aggressive, it can explain what he says  if
    one accepts what he says is the truth because nobody was there at the time to
    know what actually was said  but if we accept what he said, then I would say
    that that would be a significant event that would impact on his personality,
    his psychological functioning at the time.  That could explain why a person
    would act out on impulse.

[72]

Dr.
    Gojer continued by explaining that an important feature of his assessment was
    the absence of any history of violence by Mr. Suarez-Noa.  Dr. Gojer said:

Ive not been provided with any information and he reported
    that there has been no prior history of aggression or violence.  So essentially,
    this is a person whose personality is that of a non-aggressive individual from
    a physical point of view.  So the behaviour that hes reporting seems to go
    against the grain of aggression.  Its not a person who uses aggression to
    resolve disputes and arguments.  So, if it was a person whose regular pattern
    is about beating people up, using intimidation and aggression to express a
    point, then you would say that him losing control is part and parcel of that
    type of personality style or structure that he has.  In other words, you would
    say hes nothing more than a person whos got an anti-social trend or a
    psychopathic trend to act that way.  We  I dont see that in this account. 
    Neither do I see a history of that, in this man.  So, were going to say that
    this event seems to be something thats quite different from what you would
    expect in this individual.  Its an unusual event.  Can anything explain why a
    person would suddenly lose control?  If theres a trigger  if theres a
    traumatic event  that might explain it.  Thats what hes telling us.  Hes
    telling us thats what she said.  And thats a crucial question that we have. 
    And thats really a decision for the court  whether we believe him when he
    says, She made those comments to me, because everything hinges on those
    comments that were made.

[73]

Dr.
    Gojer went on to explain that Ms. Cowells alleged provocative comments were
    the sort of thing that could well have triggered a loss of control by Mr.
    Suarez-Noa.  In Dr. Gojers opinion, the comments would be perceived by Mr.
    Suarez-Noa as a very significant event.

[74]

There
    was no objection by the Crown to any part of Dr. Gojers testimony during his examination-in-chief. 
    The cross-examination took three principle tacks.  First, the Crown established
    that several of the personality traits revealed in the personality testing done
    for Dr. Gojer were capable of undermining the psychological portrait of Mr.
    Suarez-Noa painted during Dr. Gojers examination-in-chief.  For example, Mr.
    Suarez-Noa was said to fit the profile of a person who had significant interpersonal
    and marital conflicts and who was always quick to project blame on the other
    party.

[75]

Second,
    the Crown demonstrated that Dr. Gojer did not review all of the information
    available to him before giving testimony.  For example, he did not watch the
    entire interview Mr. Suarez-Noa had with the police.  He also was not in court
    when Mr. Suarez-Noa testified.  The Crown attempted to demonstrate that parts
    of Mr. Suarez-Noas testimony, particularly his evidence about his reaction to
    the fucking immigrant comment, were quite different than what Mr. Suarez-Noa
    had told Dr. Gojer.  The Crown argued that to the extent that the evidence
    differed from Dr. Gojers understanding, Dr. Gojers opinion must be rejected.

[76]

Third,
    the Crown cross-examined Dr. Gojer to show that Mr. Suarez-Noa had given
    significantly different versions of the same events.  The Crown used this
    aspect of Dr. Gojers evidence to attack Mr. Suarez-Noas credibility.

[77]

Not
    surprisingly, Dr. Gojers evidence figured prominently in defence counsels
    closing address.  The trial judge also referred to his evidence.  The jury
    asked to rehear Dr. Gojers evidence in its entirety during their
    deliberations.

The applicable law

[78]

Opinion
    evidence, including expert opinion evidence, is presumptively inadmissible:
R.
    v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 71, leave to appeal
    refused, [2010] S.C.C.A. No. 125.  To be admissible, expert opinion evidence
    must satisfy certain preconditions to admissibility and also survive a
    cost/benefit analysis by the trial judge.  At this second stage, the trial
    judge decides whether having regard to the risks inherent in admitting expert
    evidence, the benefits to the fact finding process in the specific case warrant
    the admission of that evidence:
White Burgess Langille Inman v. Abbott and
    Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24; and
Abbey
,
at paras. 76-79.

[79]

The
    Crown submits that Dr. Gojers evidence should have been excluded for two
    reasons.  First, his evidence was not properly the subject matter of expert
    psychiatric opinion.  Second, his evidence was not necessary in that it did not
    provide the jury with information or inferences from other evidence likely to
    be beyond the common experience of the jury.  The two submissions are closely
    related and arguably come down to the same point.  The Crown contends that Dr.
    Gojers opinion provided no benefit in the sense that it did not put the jury
    in a better position to assess the evidence, and in particular Mr. Suarez-Noas
    mental state when he killed Ms. Cowell.  The evidence did, however, carry the
    very real risk that the jury would abdicate its difficult responsibility to
    assess Mr. Suarez-Noas mental state to the expert, Dr. Gojer, and simply
    accept his opinions as their factual findings.

[80]

I
    first consider whether Dr. Gojers opinion fell within the proper ambit of
    expert psychiatric opinion.  Dr. Gojer did not testify that Mr. Suarez-Noa
    suffered from any identifiable mental disorder, or that he fell within any
    psychiatrically identifiable group.  Instead, he described Mr. Suarez-Noa as
    passive and non-aggressive from a physical point of view.  Stripped to its
    essential core, Dr. Gojers testimony came down to the assertion that if one
    believed what Mr. Suarez-Noa told Dr. Gojer, Mr. Suarez-Noa was not the sort of
    person who would do what he did to Ms. Cowell unless some significant event
    caused him to lose control and react with extreme and uncharacteristic
    violence.  In short, Dr. Gojer gave evidence of Mr. Suarez-Noas disposition,
    and more specifically, his disposition not to act violently in the absence of a
    significant triggering event.

[81]

Psychiatric
    opinion evidence going to an accuseds disposition is admissible in limited
    circumstances.  In the leading case of
R. v. Robertson
(1975), 21
    C.C.C. (2d) 385 (Ont. C.A.), Martin J.A. wrote at pp. 429-30:

In my view, psychiatric evidence with respect to disposition or
    its absence is admissible on behalf of the defence, if relevant to an issue in
    the case, where the
disposition in question constitutes a
    characteristic feature of an abnormal group falling within the range of study
    of the psychiatrist, and from whom the jury can, therefore, receive appreciable
    assistance with respect to a matter outside the knowledge of persons who have
    not made a special study of the subject
.
A
mere
disposition for violence, however, is not so uncommon as to constitute a
    feature characteristic of an abnormal group falling within the special field of
    study of the psychiatrist and permitting psychiatric evidence to be given of
    the absence of such disposition in the accused.  [Italics in original;
    underlining added.]

[82]

The limited basis for admitting expert evidence of
    disposition articulated in
Robertson
has been repeatedly applied
    in the Supreme Court of Canada:  see
R. v. McMillan
, [1977] 2 S.C.R.
    824;
R. v. Mohan
,
[1994] 2 S.C.R. 9; and
R. v. J.-L.J.
, 2000 SCC 51, [2000] 2 S.C.R. 600. 
    In
Mohan
, at p. 37, Sopinka J. explained:

Before an experts opinion is admitted as evidence, the trial
    judge must be satisfied, as a matter of law, that either the perpetrator of the
    crime or the accused has distinctive behavioural characteristics such that a
    comparison of one with the other will be of material assistance in determining
    innocence or guilt The trial judge should consider the opinion of the expert
    and whether the expert is merely expressing a personal opinion or whether the
    behavioural profile which the expert is putting forward is in common use as a
    reliable indicator of membership in a distinctive group.

[83]

Dr.
    Gojer did not suggest that Mr. Suarez-Noa fell into any distinctive group
    from a psychiatric point of view.  To the contrary, he described Mr. Suarez-Noa
    as under stress, depressed, anxious, and distrustful, all feelings that fall
    within the normal range of human emotions.  Dr. Gojers opinion was not based
    on a diagnosis or characterization of Mr. Suarez-Noas mental state as
    reflecting some recognized psychiatric disorder or condition.  Instead, Dr.
    Gojers evidence reflected his personal opinion on what may have been in Mr.
    Suarez-Noas mind, based on Dr. Gojers assessment of Mr. Suarez-Noas mental
    makeup.

[84]

In
    permitting Dr. Gojer to give this opinion, the trial judge drew a distinction
    between a diagnosis and a medical explanation for Mr. Suarez-Noas conduct. 
    He also referred to Dr. Gojers opinion as evidence of the possibility of a
    medically recognized situation.  I am unsure of the distinction between a diagnosis
    and a medical explanation.  More to the point, Dr. Gojer offered neither. 
    Nor did he suggest that Mr. Suarez-Noas conduct fell within some generally
    accepted and definable medically recognized situation.  Dr. Gojers opinion
    as to Mr. Suarez-Noas disposition for violence, or more specifically, the
    absence of any such disposition in the absence of a significant triggering
    event, did not fall within the recognized parameters of admissible psychiatric
    opinion evidence as to disposition.

[85]

It
    flows from my conclusion that Dr. Gojers opinion went beyond the proper ambit of
    expert psychiatric opinion of disposition, that his opinion was also
    unnecessary in the relevant sense.  The jury had the same, indeed more,
    information than Dr. Gojer did about Mr. Suarez-Noas state of mind and the
    factors that may have been relevant to his conduct when he killed Ms. Cowell.  The
    jury was capable of understanding and weighing the emotional strain associated
    with the turbulent relationship between Mr. Suarez-Noa and Ms. Cowell.  Similarly,
    the jury was well-equipped to appreciate the kind of emotion that could be
    generated by the situation described by Mr. Suarez-Noa immediately before the homicide. 
    The jury did not need Dr. Gojer to tell them about the potential volatility of a
    situation like that described by Mr. Suarez-Noa.  Nor could Dr. Gojer assist
    the jury in the crucial task of assessing the credibility of Mr. Suarez-Noas
    description of those events.

[86]

Expert
    opinion evidence, like that given by Dr. Gojer in this case, has been rejected
    in several cases as an unnecessary intrusion upon the jurys responsibilities: 
    see e.g.
R. v. Lovie
(1995), 100 C.C.C. (3d) 68 (Ont. C.A), at pp.
    76-78;
R. v. Currie
(2002), 166 C.C.C. (3d) 190 (Ont. C.A.), at paras.
    66-67;
R. v. Rogers
(2005), 198 C.C.C. (3d) 449 (B.C.C.A.), at para.
    79; and
R. v. Liard
, 2013 ONSC 5457, at paras. 363-77.
[3]

[87]

The
    observations of the trial judge in
Liard
, at para. 377, a case in
    which the defence  offered evidence from Dr. Gojer, not unlike the evidence
    offered here, are apposite:

Dr. Gojers anticipated evidence is not admissible because it
    is not necessary to assist the jury.  Rather, it is a summary of conclusions about
    Mr. Lasotas [the accused] reactions to stresses and difficulties in his life. 
    The jury is able to assess these circumstances without Dr. Gojers evidence 
    It [Dr. Gojers evidence] tends to dress up matters of common experience in the
    cloak of expertise, giving rise to a fear that the jury would give undue weight
    to the opinion.

[88]

Ms.
    Pringle, counsel for Mr. Suarez-Noa, persuasively argued that even if Dr.
    Gojers opinion concerning Mr. Suarez-Noas mental state was inadmissible, the
    Crown made a tactical decision, after advancing a very limited objection to his
    evidence, to make its case by cross-examining Dr. Gojer.  She stresses that the
    Crown did not object to any part of Dr. Gojers evidence when he was
    testifying.  Ms. Pringle argues that the Crown, having made a tactical choice
    to advance its case through the cross-examination of Dr. Gojer, should not be
    allowed to argue on appeal that none of his evidence was admissible.

[89]

I
    was initially attracted to this submission.  However, on further reflection and
    a more thorough review of the trial record, I cannot accept the argument.

[90]

A
    careful reading of Crown counsels objections at trial satisfy me that she did
    object to Dr. Gojer giving any evidence about the subjective component of the provocation
    defence.  She referred to this part of his proposed opinion as entirely
    outside the purview of this expert.  She also referred the trial judge to the
    case law identifying the requirement that expert evidence to be admissible must
    be beyond the ordinary experience of jurors.  On a fair reading of the trial
    record, I am satisfied that Crown counsel at trial took the same position on
    this issue as did the Crown on appeal.

Should the court order a new trial?

[91]

The
    Crown has demonstrated an error in law at trial.  To obtain a new trial based
    on that error, the Crown must establish that in the context of the trial as the
    issues unfolded and were argued, the error might, to a reasonable degree of
    certainty, be believed to have had a material impact on the acquittal:
R.
    v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 16-17;
R. v.
    McRae
, 2013 SCC 68, [2013] 3 S.C.R. 931, at paras. 30-37; and
R. v.
    George
, 2017 SCC 38, at para. 27.

[92]

The
    Crown has met its burden.  In my view, as counsel accepted on appeal,
    provocation was the central issue at trial.  In considering that defence, the
    jury was obliged to decide whether Mr. Suarez-Noa should be partially excused
    for having murdered Ms. Cowell.  The decision was clearly a difficult one.  The
    jury may well have given considerable weight to what may have appeared to the
    jury to be an objective assessment of Mr. Suarez-Noas conduct made by a trained
    medical expert with specialized expertise in understanding the human
    condition.  In reality, for the reasons set out above, Dr. Gojer was at best in
    no better position than the jury to make this assessment.


V



conclusion

[93]

I
    would allow the appeal, set aside the acquittal on the charge of second degree
    murder and the conviction on the charge of manslaughter and order a new trial
    on the charge of second degree murder.

Released: DD  JUL 28 2017

Doherty J.A.

I agree Paul Rouleau J.A.

I agree S.E. Pepall J.A.





[1]

Section 232 was amended by S.C. 2015, c. 29, s. 7.  Section
    232(2) now reads:  Conduct of the victim that would constitute an indictable
    offence under this Act that is punishable by five or more years of imprisonment
    and that is of such a nature as to be sufficient to deprive an ordinary person
    of the power of self-control is provocation for the purposes of this section,
    if the accused acted on it on the sudden and before there was time for their
    passion to cool.  Under the present provision, the provocative act must amount
    to an indictable offence punishable by at least five years.  An insult that is
    not criminal is no longer capable of constituting a provocative act.



[2]

The amendment created the Crowns right of appeal from an
    acquittal.



[3]
Counsel for the respondent refers to
R. v. Gillett
(2002), 159 O.A.C. 247 (C.A.), in support of the admissibility of Dr. Gojers
    evidence.  In its brief endorsement, the court referred to the evidence given
    by Dr. Gojer.  That evidence was similar to evidence he gave in this case. 
    From the endorsement, it would not appear that the admissibility of Dr. Gojers
    evidence was in issue on the appeal.


