R v Newborn, 2016 ABQB 281

Court of Queen ’ s Bench of Alberta Citation: R v Newborn, 2016 ABQB 281 Date: 20160517 Docket: 130920374Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Jeremy Lyle Newborn Accused _______________________________________________________ Memorandum of Decision On an Expert Evidence Voir Dire of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] The judge and jury trial of Jeremy Lyle Newborn on the charge of the second degree murder of John Hollar proceeded before me from April 18 to May 6, 2016.

On May 2, 2016, in the absence of the jury, I heard a voir dire as to the admissibility in the Crown’s case, of the expert opinion evidence of two forensic psychiatrists, Dr. Roger Brown and Dr. Curtis Woods. [ 2 ] At the conclusion of the voir dire , I ruled that the opinion evidence of these two expert witnesses was admissible subject to some editing of their written reports. So as not to delay the progress of the trial before the jury, I said that I would provide my reasons for that decision at a later date. I ordered several edits to be made to the each of the doctors’ reports.

The two expert witnesses testified before the jury the next day, May 3, 2016.

[3] I now provide the reasons for my decision in the voir dire. [4] Mr. Newborn assaulted Mr. Hollar while both were passengers on an LRT train on the afternoon of December 28, 2012. OnDecember 30, 2012, Mr. Hollar died as a result of the injuries Mr. Newborn inflicted. Mr. Newborn was charged with second degreemurder. The evidence included CCTV video from the LRT car showing much of the assault. [5] The only issue in the trial was whether or not Mr. Newborn had either of the two intents required for murder as set out in CCs. 229(a): Did Mr. Newborn either (

a) mean to cause Mr. Hollar’s death or (

b) mean to cause Mr. Hollar bodily harm that he knew waslikely to cause Mr. Hollar’s death and was he reckless whether death ensured or not? [6] Mr. Newborn admitted that he assaulted Mr. Hollar and that Mr. Hollar died as a result of the injuries inflicted in theassault. Mr. Newborn acknowledged that he was guilty of manslaughter. He disputed however the Crown’s contention that he had theintent required for murder. [7] In his opening statement to the jury, which he presented before the Crown’s case, Mr. Renouf, counsel for Mr.

Newborn,alerted the jury to the fact that the issue for them to decide was the issue of intent. He told the jury that the defence anticipated callingevidence from a neuropsychologist, Dr. Valerie Massey, who would provide the results of her neuropsychological testing of Mr.Newborn which showed that Mr. Newborn is a person of extremely limited intellectual functioning. He said that Dr. Massey placed Mr. Newborn below the 1st percentile with respect to intellectual functioning which means that in a group of 100 individuals Mr. Newborn’sintellectual functioning is below that of the lowest. He told the jury Dr.

Massey would testify that Mr. Newborn has a very low IQ andthat she had diagnosed him as having clinically impaired cognitive ability. [8] Mr. Renouf noted that the jury would have to assess whether common sense presumptions of what an ordinary person mightknow about the likely consequences of their action could be applied in Mr. Newborn’s case, given the low level of his intellectualfunctioning. [9] Mr. Renouf’s comments to the jury in his opening address were consistent with the written report of Dr.

Massey which hehad provided to the Crown about a week before the trial and to the Court before the opening addresses were presented. [10] Towards the end of the second week of the trial, Mr. Watson advised me that he intended to call evidence from Dr. Brownand Dr. Woods. Although calling them was inspired by the anticipated evidence of Dr. Massey, so they were in a sense rebuttalwitnesses, they would be called in the Crown case so that case would not be split. [11] Thereafter, Mr. Watson provided the written reports of the two psychiatrists each dated April 27, 2016. Both psychiatristshad reviewed Dr.

Massey’s psychological assessment of Mr. Newborn and the CCTV video from the LRT train car depicting Mr.Newborn’s assault of Mr. Hollar. [12] Dr. Brown’s written report provided his opinion on two specific questions: 1. Does Mr. Newborn have the ability to realize that his actions would likely cause death? Dr. Brown’s opinion was that Mr. Newborn “. . . likely would have the capacity, in general, to recognize that assaultive behaviour couldlead to death. . . . Mr. Newborn’s intellectual deficits do not necessarily deprive him of the ability to foresee death as a possibleconsequence of an assault.” 2. Does Mr.

Newborn have the ability to intend to cause death? Dr. Brown’s opinion was that “. . . it is more likely than not that Mr. Newborn would have had the ability to form the intent to causedeath. Mr. Newborn’s intellectual and cognitive deficits do not necessarily deprive him of this ability . . .” [13] Dr. Woods’ written report identified the question on which he offered his opinion as, “. . . whether Mr. Newborn is capable orable to intend or foresee the consequences of his conduct.” Dr. Woods’ opinion was “. . . that Mr.

Newborn can purposefully engage,and have the conscious object of engaging, in conduct with the desire to inflict grievous bodily harm upon the victim. I am also of theopinion that Mr. Newborn can know or is capable of knowing that grievous bodily harm he causes is likely to result in death.” [14] I heard the evidence of both psychiatrists in the voir dire. [15] Mr. Renouf submitted that their evidence was inadmissible because it did not satisfy the Mohan requirements of relevance,necessity in assisting the trier of fact, and the absence of any exclusionary rule. (R v.

Mohan, (SCC), [1994] 2 S.C.R.9) He submitted that in exercising my “gatekeeper” function, I should exclude the proposed expert evidence because it was not “. . .sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that [might] flow from the admission of the expert evidence.” (R. v. Abbey

(2009) C.R. (6th) 201 (Ont. C.A.)) Relevance and Necessity [16] Mr. Renouf did not dispute that the evidence of the two psychiatrists is logically relevant. Clearly, the evidence is logicallyrelated to a fact in issue, indeed the only fact in issue, whether or not Mr. Newborn had the intent required for murder. However, Mr.Renouf submitted that the cost benefit analysis required in determining legal relevance, (as described in Mohan at paras. 18 to 20 and inAbbey in para. 76 to 90) yielded the conclusion that this evidence was not legally relevant or necessary and should not be admitted. [17] Mr.

Renouf noted that neither psychiatrist had interviewed Mr. Newborn to assess him for the purpose of their opinions. Bothhad reviewed the psychological assessments made by Dr. Massey. Both had viewed the LRT video of the assault. The opinions of bothwere, to some extent, based on their

interpretations of what they saw in the video.

[ 18 ] Mr. Renouf argued, that the potential benefit of the jury having the psychiatrists’ opinions was outweighed by the cost. The cost, he submitted, was the risk that the jury would be moved by the psychiatrists’

interpretation of Mr. Newborn’s behaviour, as seen in the video, to rely on that

interpretation instead of their own. [ 19 ] He submitted that the benefit of the proposed evidence was very small. The

interpretation of the video did not require psychiatric expertise. He submitted that the experts’

interpretation as to what they saw in the video concerning Mr. Newborn’s actions, was not based on psychiatric principles. He submitted that the experts’ opinions came so close to the ultimate issue for the jury as to create an unacceptable danger that the jury would abdicate its function to the experts. [ 20 ] My cost/benefit assessment came to the opposite conclusion. [ 21 ] The specific issue addressed in the proposed expert evidence was whether or not Mr.

Newborn’s cognitive deficits were of such a degree that he did not have the capacity to intend to kill or to intend to cause bodily harm that he knew was likely to cause death. The anticipated defence evidence of Dr. Massey would go to establishing that Mr. Newborn had serious cognitive deficits – in particular an IQ of 59 and other characteristics that caused Dr. Massey to conclude that he “would meet the diagnostic criteria for a mild/moderate mental handicapping condition, as established” . . . in the DSM-5.

The DSM-5 establishes four levels of intellectual disability: mild, moderate, severe and profound. [ 22 ] However, the evidence of Dr. Massey was not anticipated to address the question of whether a person with a mild to moderate intellectual disability would have the capacity to intend to kill or to intend to cause bodily harm that he would know was likely to cause death. [ 23 ] In my view, the jury would derive very significant benefit from expert evidence as to the capacity of a person with the psychiatric diagnosis of mild to moderate intellectual disability to have the intent required for murder.

Further, the jury would benefit from the opinion of psychiatric experts as to the significance of aspects of Mr. Newborn’s behaviour in the LRT video to their respective opinions as to Mr. Newborn’s mental capacity to intend to kill or to cause bodily harm which he knew was likely to cause death. [ 24 ] In my view, those benefits outweighed the “costs” of the jury hearing the psychiatrist’s evidence as they were identified by Mr. Renouf. I did not agree that the psychiatrists had not used psychiatric expertise in interpreting the video. They each identified aspects of Mr.

Newborn’s behaviour in the video which were significant to their assessment of his adaptive functioning (which is important to the diagnosis of the level of his intellectual disability) and his mental capacity to intend to kill or to cause bodily harm that he knew was likely to cause death. [ 25 ] In my view, the danger that the jury would be overwhelmed by the experts’

interpretation of the video was overstated. The important features of Mr. Newborn’s behaviour as recorded in the video were not susceptible to significantly divergent

interpretations. What Mr. Newborn did was clear. Whether or not what he did spoke to his mental capacity, which the defence evidence would put in question, was properly the subject of the expert comment proposed by the Crown. The remaining risk that the jury might abdicate its function to the experts could be minimized by appropriate instructions in my charge. [ 26 ] Mr. Renouf also argued that Dr. Woods’ opinion as stated in his written report offended the exclusionary rule concerning character evidence. This was because of descriptors Dr. Woods had used when expressing his opinions about Mr. Newborn’s conduct.

This concern was addressed by editing out of Dr. Woods’ report the descriptors in question and by instructing him not to use such terms in his testimony before the jury. [ 27 ] For these reasons, I concluded that the expert opinion evidence of Dr. Brown and Dr. Woods was admissible. [ 28 ] I note that subsequent to the voir dire , Dr. Brown and Dr. Woods testified and the Crown’s case was closed. Dr. Massey testified in the defence case and although, at the time of the voir dire , it was not anticipated (at least by me) that she would express an opinion in her evidence as to whether or not Mr.

Newborn had the mental capacity to intend to kill or to intend to cause bodily harm that he knew was likely to cause death, she did in fact testify that in her opinion he did not have that mental capacity. The Crown raised no objection to her testifying as to her opinion in that regard. Heard on the 02 nd day of May, 2016. Dated at the City of Edmonton, Alberta this 17 th day of May, 2016.

B.R. Burrows J.C.Q.B.A. Appearances: John Watson, Q.C. and Sakeb Nazim for the Crown Simon Renouf, Q.C. and Julia Renouf for the Accused