R. v. Soulier, 2020 MBPC 4

CITATION: R. v. Soulier , 2020 MBPC 4 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Armstrong, for the Crown ) ) - and - ) ) ) Winston Soulier ) ) M. Walker, for the Accused ) ) Reasons for Decision ) Delivered: January 20, 2020 PUBLICATION BAN : Pursuant to

section 486.4: No information that could identify the victim in this matter may be published, broadcast or transmitted in any way. C.A. DEVINE, P.J. INTRODUCTION [ 1 ] This is a decision concerning the admissibility of expert opinion evidence in the context of a voir dire on the voluntariness of an accused’s police statement. Mr. Soulier gave a statement to the police after his arrest for sexual assault. The Defence is tendering an expert to testify that Mr. Soulier has a language disorder and cognitive defects which may have affected the voluntariness of that statement.

The Crown is opposed to the admission of this evidence. THE PROPOSED EVIDENCE [ 2 ] Defence filed a description of the proposed opinion evidence as an exhibit in the voir dire . The exhibit states: Statement of Proposed Opinion Evidence – Dr. Del Ducharme a. Clinical Psychologist with Expertise in the

Interpretation of Intelligence Test Reports. b. Qualified to give expert opinion evidence in the following areas: 1. Whether the intelligence test results reported in the Assessment Report written by Dr. Clemente Rohde dated December 2, 2015 would have been valid in March of 2018. 2. To explain what the intelligence test results reported in the School Assessment Report of December 2, 2015 mean and how they would have affected Winston Soulier’s ability to understand verbal communication. 3.

To provide an opinion as to whether the manner in which Detective Kendel communicated with Winston Soulier during the interview of March 18, 2019 may have affected his understanding of what was said to him given his cognitive limitations. [ 3 ] The Crown conceded that this was one of those rare cases referred to in R. v. Oickle , 2000 SCC 38 and R. v. Pearce , 2014 MBCA 70 where the particular characteristics of the accused could make them more vulnerable to false confessions, therefore receiving evidence about Mr.

Soulier’s particular cognitive and other personal characteristics would be relevant and important to the inquiry into the voluntariness of his statement. Writing for the majority in Oickle , Justice Iacobucci stated as follows: From this discussion, several themes emerge. One is the need to be sensitive to the particularities of the individual suspect.

For example, White, supra, at p. 120, notes the following: False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especially vulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities, and, in rare instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of the interrogation .(at para. 42)

[ 4 ] The Crown agreed that it would be appropriate to hear more about Mr. Soulier to ensure that I take a contextual approach to the viewing of the police statement, falling short of the expert commenting on the manner in which the interview was conducted, the questions asked by the police and Mr. Soulier’s understanding or misunderstanding of the questions. [ 5 ] The Crown therefore did not disagree that I could hear the evidence of Dr. Ducharme in the first two proposed areas, that is, to explain the results of the intelligence test and how these results affect Mr.

Soulier’s ability to understand verbal communication. [ 6 ] But the Crown objected to the opinion evidence on the third point. The Crown argued that the third question would usurp my role as the trier of fact to decide if the statement was voluntary, and that Dr. Ducharme, although eminently qualified to provide information to the Court on his assessment of Mr. Soulier generally, is not qualified to comment on police interview techniques, nor on the novel application of using his psychological testing in the police interview context. BACKGROUND: MR. SOULIER AND THE POLICE STATEMENT [ 7 ] Mr.

Soulier is charged with a sexual assault that allegedly occurred on March 18, 2018. [1] It is alleged that a number of people were at Mr. Soulier’s home, and after people were drinking and doing drugs, it is alleged that Mr. Soulier went to J.C. who was asleep and he sexually assaulted her. She awoke, and he went back to his room. Someone called the police and the police arrived. [ 8 ] Mr.

Soulier was arrested on scene and taken to Winnipeg Police Headquarters where he was interviewed by Detective Chad Kendel of the Sex Crimes Unit. [ 9 ] He had never been arrested before. [ 10 ] He was 18 years of age at the time. [ 11 ] He is a young Indigenous man who grew up in Gods River, Manitoba. At the time of the offence, he was going to high school in Winnipeg and living with his girlfriend and her sister. [ 12 ] He testified that he always had trouble in school. [ 13 ] During his interview, he denied many of the allegations made by the interviewer. He made some admissions.

He was upset during a significant portion of the interview, crying, sobbing, pounding his fists on the floor and his head on the wall. [ 14 ] These were some of the circumstances of Mr. Soulier and the interview at the time the interview occurred. [ 15 ] The material that the Defence wishes to tender indicates that in 2015 Mr. Soulier was administered tests by Frontier School Division where he attended school in Cranberry Portage. He was assessed for intellectual, academic and adaptive functioning.

The results included findings of extremely low functioning in the verbal areas of intellectual functioning and serious deficits in the area of working memory. The 2015 assessment queried a language disorder; Dr. Ducharme assessed Mr. Soulier in 2019 and confirmed most of the findings and diagnosed a severe language disorder. This is information included in Dr. Ducharme’s report which the Crown is not contesting. [ 16 ] As indicated, the Crown concedes that Dr. Ducharme should be permitted to explain these test results and Mr.

Soulier’s receptive and expressive communication generally, but should be prevented from providing evidence about whether the manner in which Detective Kendel communicated with Winston Soulier during the interview of March 18, 2018 may have affected his understanding of what was said to him given his cognitive limitations. The Crown is challenging the admissibility of that evidence on the basis that it is not necessary, that Dr. Ducharme is not qualified to provide expert opinion evidence on police interviews, and finally, that although the type of testing conducted by Dr. Ducharme and Dr.

Rohde are not novel, the application of those types of education assessment tools to this context of ascertaining whether a confession is false or a statement is involuntary is novel and does not meet the more rigorous threshold for admission of that evidence. [ 17 ] There is a considerable body of jurisprudence about the determination of the admissibility of expert opinion evidence. This area of law continues to develop; there have been recent developments in the law. It is important to outline some of the basic principles and set out the context for the particular application in Mr. Soulier’s case.

EXPERT OPINION EVIDENCE [ 18 ] As a general rule, witnesses are not permitted to testify about their opinions. The trier of fact draws inferences and comes to decisions based on the factual observations and other types of evidence that witnesses provide in court. The general prohibition concerning opinion evidence rests on that type of evidence’s unreliability and irrelevance. There is a category of opinion evidence that is an exception to the general exclusionary rule and that is expert opinion evidence. Justice Doherty explained the general rule and exception to the rule most cogently in R. v.

Abbey , 2009 ONCA 624 ( Abbey #1 ) : It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material.

The trier of fact must then decide whether to accept or reject the expert's opinion as to the appropriate factual inference. (at para. 71) [ 19 ] Expert opinion evidence, as a subset of opinion evidence, is still presumptively inadmissible. It must meet threshold standards

to be admitted and is subject to rigorous consideration throughout; the trial judge must pay ongoing attention to the scope of thewitness’s evidence. Justice Doherty continued in that same paragraph in Abbey #1: . . . Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently,expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balanceof probabilities: Paciocco and Stuesser, at pp. 184, 193; Hon. Jus. S. Casey Hill, David M. Tanovich and Louis P.

Strezos, McWilliams'Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2009), at para. 12:30.10. (at para. 71) [20] The first job of the trial judge is to determine whether the threshold admissibility requirements have been met. What I havedescribed as the rigorous continuing consideration of the expert opinion evidence is referred to as the “gatekeeping” function of thejudge.

Justice Doherty discussed the difference between the two phases at paragraph 78 of Abbey #1: It is helpful to distinguish between what I describe as the preconditions to admissibility of expert opinion evidence and the performanceof the "gatekeeper" function because the two are very different. The inquiry into compliance with the preconditions to admissibility is arules-based analysis that will yield "yes" or "no" answers.

Evidence that does not meet all of the preconditions to admissibility must beexcluded and the trial judge need not address the more difficult and subtle considerations that arise in the "gatekeeper" phase of theadmissibility inquiry. THRESHOLD ADMISSIBILITY [21] Since the Ontario Court of Appeal dealt with this issue in 2009, the law has shifted to make even the threshold inquiry anevidence-based inquiry. The law in this area has progressed, from a rules-based four-question inquiry in Mohan, nuanced in Abbey #1 in2009 and further nuanced in 2015 in White Burgess Langille Inman v.

Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.Justice Laskin, writing for the Ontario Court of Appeal in R. v. Abbey, 2017 ONCA 640 (Abbey #2), set out the new analyticalframework for the admission of expert opinion evidence (adopting the outline of the test of Professor Lisa Dufraimont (2015), 18 C.R. (7th) 312-313), stating: The modern Canadian law on the admissibility of expert evidence began with the judgment of Sopinka J. in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9 (S.C.C.). But in the last two decades since Mohan was decided the law on expert evidence has changedsignificantly.

In Abbey #1 itself - on the Crown’s appeal from the acquittal at the first trial - my colleague Doherty J.A. reformulated theMohan test for admissibility to make it easier to apply. And recently in White Burgess Langille Inman v. Abbott and Haliburton Co.,2015 SCC 23, [2015] 2 S.C.R. 182 (S.C.C.), Cromwell J. adopted with “minor adjustments” Doherty J.A.’s reformulation of Mohan.2. The test in White Burgess is now the governing test for the admissibility of expert evidence.

It adopts a two-stage approach, firstsuggested in Abbey #1: the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge’sdiscretionary gatekeeper role. Each stage has a specific set of criteria. The test may be summarized as follows: Expert evidence is admissible when:

(1) It meets the threshold requirements of admissibility, which are: a. The evidence must be logically relevant; b. The evidence must be necessary to assist the trier of fact; c. The evidence must not be subject to any other exclusionary rule; d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert’s dutyto the court to provide evidence that is: i. Impartial, ii. Independent, and iii. Unbiased. e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable forthat purpose, and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, consideringsuch factors as: a. Legal relevance; b. Necessity; c. Reliability; and d. Absence of bias. In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the

threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting theevidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judgeis not so satisfied the evidence will be excluded even though it has met the threshold requirements. (Abbey #2 at paras. 46 – 49) [22] In this case, we are at the threshold admissibility stage of the analysis. As indicated earlier, the Crown is not taking issue withDr.

Ducharme testifying about the intelligence test results of 2015 and whether they would have been valid in March 2018, and anexplanation of what those tests mean and how they would have affected Mr. Soulier’s ability to understand verbal communication. It isconceded by the Crown that Dr. Ducharme’s opinion with respect to those issues is relevant, necessary, not subject to any otherexclusionary rule, and that Dr. Ducharme is qualified to give that opinion. Neither the testing nor Dr.

Ducharme’s explanation of the testraise novel areas of scientific research or application. [23] What is not agreed to is the opinion of Dr. Ducharme with respect to whether the manner in which Detective Kendelcommunicated with Mr. Soulier during the police interview affected Mr. Soulier’s understanding of what was said to him, given hiscognitive limitations. [24] The threshold admissibility questions must therefore be considered for that proposed evidence. 1.

Relevance [25] Justice Doherty explained the test of relevance at the threshold stage, in Abbey #1: When I speak of relevance as one of the preconditions to admissibility, I refer to logical relevance. I think the evaluation of the probativevalue of the evidence mandated by the broader concept of legal relevance is best reserved for the "gatekeeper" phase of the admissibilityanalysis. (at para. 84) [26] The Defence argues that whether Mr.

Soulier fully understood the detective’s questioning and communicated in response to afull understanding of the questions is relevant to whether the statement he gave to police was voluntary. [27] The Defence argued that the voluntary nature of the statement in this case is not as narrow as the question of whether Mr.Soulier’s will was overborne or whether he had an operating mind during his statement. That is a very low threshold. In the seminal casedealing with the operating mind threshold, R. v.

Whittle, (SCC), 1994 CarswellOnt 91, [1994] 2 S.C.R. 914, JusticeSopinka stated that the degree of cognitive capacity required to satisfy the operating mind test was no higher than “knowledge of whatthe accused is saying and that he is saying it to police officers who can use it to his detriment” (at para. 39).

Justice Sopinka went on todiscuss the mental element required of the operating mind test, under the heading, “the mental element in exercising pretrial rights bypersons suffering from mental disorders” as follows: The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accusedhave sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand acaution that the evidence can be used against the accused.

The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make anactive choice. In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitnessto stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counseland that he or she can dispense with counsel even if this is not in the accused’s best interests. It is not necessary that the accused possessanalytical ability.

The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence.The accused must have the mental capacity of an operating mind as outlined above. (at paras. 50 – 52) [28] The Defence argues that for the statement to be voluntary, which is commonly understood as circumstances where there is anabsence of threats, promises and police trickery and where the accused has an operating mind, it must also be taken in such a way as toaccount for the accused’s mental illness, cognitive disabilities, and whether English is the accused person’s first language.

In short, theDefence argues that the analysis of whether a statement is voluntary must be a contextual one. He argues, for example, that in this case,Mr. Soulier may have perceived certain things said by the officer as either threats or promises because of his language disorder and hiscultural background. [29] The Crown concedes that evidence about a person’s character and mental functioning is sometimes relevant to thevoluntariness of the police statement. [30] The evidence of the expert will provide information about the communication disability of Mr.

Soulier which would haveaffected his ability to understand and communicate with the police interviewer. The ability of Mr. Soulier to understand andcommunicate with the police interviewer is relevant to whether certain things he said to the interviewer were voluntary. [31] Therefore, the opinion evidence of Dr. Ducharme with respect to the third question is logically relevant. 2. Necessity [32] It is not sufficient that the opinion evidence is helpful to the trier of fact; it must be necessary. The question I have to ask is

whether I would be able to come to a conclusion about whether the statement was voluntary, without Dr. Ducharme’s evidence assessingthe manner in which Detective Kendel communicated with Mr. Soulier during the police interview and how that affected hisunderstanding of what was said to him given his cognitive limitations. [33] In R. v.

Mohan, (SCC), 1994 CarswellOnt 66 (S.C.C.), Justice Sopinka stressed that although mere helpfulnessis not sufficient to warrant the inclusion of expert opinion evidence, necessity should not be too strict a threshold: This precondition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word “helpful” is notquite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard.

What is required is that theopinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge orjury”: as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact toappreciate the matters in issue due to their technical nature. In Kelliher (Village) v.

Smith, (SCC), [1931] S.C.R. 672, at p.684, this court, quoting from Beven on Negligence (4th ed. 1928), p. 141, stated that in order for expert evidence to be admissible, “[t]hesubject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by personswith special knowledge.” More recently, in Lavallee, supra, the above passages from Kelliher and Abbey were applied to admit expertevidence as to the state of mind of a “battered” woman.

The judgment stressed that this was an area that is not understood by the averageperson. (at para. 26) [34] I have heard testimony from Mr. Soulier that he did not understand some of the questions asked by Detective Kendel, and thathe perceived some of the things said to him as inducements or threats.

However, without the further technical advice and opinion of Dr.Ducharme, about whether and how his language disorder might affect the interview, I would be steered toward conducting a credibilityanalysis, as opposed to understanding that there may have been other things in operation at the time of the interview. [35] Additionally, I can review the 2015 assessment done with Mr. Soulier, which stated that he had a language disability. I can alsoreview the part of Dr. Ducharme’s assessment report, which reports on his own psychometric testing, as well as the clinical interview hedid with Mr. Soulier.

I also have the ability to review the police videotape of the interview, along with the written transcript. [36] But, I do not have the educational, experiential background of Dr. Ducharme as a clinical, behavioural psychologist with 26years of experience working with people, including people from the north, with cognitive limitations and mental deficits, in order tocorrelate those scientific and clinical findings to the exercise of properly assessing Mr. Soulier’s police interview. Without sometechnical assistance, I am not properly able to view the interview with Mr.

Soulier’s unique characteristics in mind, which is what I amrequired to do. I cannot apply the information provided about the test results and clinical information about Mr. Soulier’s receptive andexpressive language deficits and assess whether and how those things impacted on his ability to make a voluntary statement to the police.The technical nature of this information requires an explanation from a witness like Dr. Ducharme. [37] The Crown argued that not only is Dr. Ducharme’s evidence on this last question unnecessary, it also trenches on the veryconclusion that I must decide, that is whether Mr.

Soulier’s statement was voluntary. [38] The Supreme Court in Mohan stated that this concern is a real one and the trier of fact should ensure that the expert does notsubstitute their conclusion for that of the court: There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact.Too liberal an approach could result in a trial’s becoming nothing more than a contest of experts with the trier of fact acting as referee indeciding which expert to accept.

These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longerof general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are appliedstrictly, on occasion, to exclude expert evidence as to an ultimate issue. Expert evidence as to credibility or oath-helping has beenexcluded on this basis. See R. v. Marquard, (SCC), [1993] 4 S.C.R. 223, per McLachlin J. (at paras. 28 and 29) [39] Some of the evidence of the expert in R. v. Pearce, 2016 MBQB 14, was excluded on that basis.

In that case, the issue ofvoluntariness of the police statement and the defence of false confession were raised and treated as discrete issues. Justice Martinallowed testimony of the defence expert Dr. Frumkin, on the voluntariness voir dire, to provide his opinion about the psychologicalevaluation of the accused and about police interrogation techniques generally. Justice Martin ruled that the statement was voluntary. [40] A separate issue was whether the police statements given by the accused were false confessions.

The Crown agreed that Dr.Frumkin was qualified to give this evidence, except for evidence about the Gudjonsson Suggestibility Scale (GSS) test, which the Crownargued did not meet the reliability criteria for novel science. Ultimately, Justice Martin determined that the GSS test was sufficientlyreliable to be admitted, and Dr. Frumkin was suitably qualified to present his findings from the test. He admitted Dr.

Frumkin’s evidenceabout the GSS test and other tests that he administered to assess the accused’s specific personality traits and the accused’s suggestibilityor vulnerability in particular situations, including police interrogations. However, critically, the proposed evidence must be understood in the context in which it is being offered. First, it is one test of many thatassisted Dr. Frumkin in assessing Mr. Pearce’s specific personality traits.

Second, it is not a test designed to weed out false confessions.Rather, I accept the evidence, as presented here, that the GSS test is not aimed at assessing someone’s reliability in terms of a confession,but rather was developed to test a person’s suggestibility or vulnerability in a particular situation, including potentially an interrogation.Third, the conclusions respecting the test as explained by Dr. Frumkin, along with the conclusions from the other tests, allow me as atrier of fact to assess Mr.

Pearce’s interrogation and confession through a lens to which I might not otherwise have been as fully alert.The lens of course is Mr. Pearce’s unique personality traits. I am satisfied that this is that rare case referred to in Oickle where I need beparticularly sensitive to the particularities of the individual suspect whose personality makes him prone to police suggestions.(at para.59)

[41] However, Justice Martin did not admit Dr. Frumkin’s evidence about his observations, opinions and conclusions of theaccused’s police interrogation and confession. It was Justice Martin’s conclusion that this encroached on the ultimate issue, which in thatinstance, was whether the confession was false: Having concluded this, to be clear, I would not allow Dr. Frumkin to testify as to his observations, opinions and conclusions of Mr.Pearce’s interrogation and confession, as was led in his examination. Those portions of his testimony tread too close to the trier of factsrole and were not admitted (exhibit 44).

Those views and opinions invariably, in effect, encroach upon the ultimate issue. As even Dr.Frumkin acknowledged, that is not his role. Further, I found that he often went too far with his opinion in this area to the point ofadvocating, albeit in response to questions and without objection. (at para. 60) [42] In a case filed by the Defence, R. v. Bohemier, [2002] M.J.

No. 313 (Q.B.), the accused’s treating psychiatrist testified aboutthe accused’s chronic schizophrenia, FASD, how he experiences gross disruption of his thought process when untreated andexperiencing stress, and how he relates to people in authority. The statement was not available to the court nor the expert to review,because it was not videotaped (a fact criticized by Justice Monnin at para. 49). I note however, that the expert was not asked to addressparticular questions and answers from the interview in the way that Dr.

Ducharme is being asked to do. [43] In another case filed by the Defence on the issue of a defence expert testifying in a voir dire about the voluntariness of theaccused’s statement, R. v. Millar, 2003 ABQB 146 , [2003] A.J.

No. 635 (Q.B.), Justice Watson (as he then was) did not admitthe evidence of the psychologist about his assessment of the police interview, what Justice Watson called “his quasi-legal analysis of thepolice interviews” (at para. 109). [44] There are no cases before me where an expert witness was permitted to view a police statement with an accused person andtestify about whether the accused person understood or appreciated the questions and gave answers that were reliable, given the accusedperson’s cognitive or other mental limitations or particular circumstances.

This is essentially what Defence counsel is requesting of me inthis case. [45] However, it is difficult to determine threshold admissibility of this evidence based on the submissions alone. I note that bothJustice Martin and Justice Watson heard the proffered evidence of the experts in this area before coming to a determination of itsadmissibility in Pearce and Millar. While the threshold admissibility questions from Mohan are “yes/no” questions, sometimes it isprudent to hear the evidence before answering the questions. This is one of those cases.

I agree with Justice Watson who would preferthis procedure especially where the defence is tendering the expert: In this instance, I exercised my gatekeeper function respecting opinion evidence by allowing Pagliaro's evidence to be introduced on thevoir dire in order to have a full appreciation of the issues in the voir dire. That did not mean that I would inevitably find the evidence tobe "helpful". The purpose of a voir dire is to make preliminary determinations of admissibility. It should be no surprise, therefore, that evidence thatmay be in the end found to be inadmissible may be heard within it.

Indeed, I am inclined to the view that Trial Judges should adopt agenerally inclusionary policy relative to evidence inside voir dires, subject mainly to the confines of adjudicative fairness and coherence. This flexibility about rules of evidence seems particularly valid when the voir dire is concerned with the admission of defence evidence: J. (J.-L.); Seaboyer71; Mills72. This does not mean that a voir dire needs no rules of evidence either for defence or Crown evidence.Nevertheless, the format of a voir dire and the acceptance of evidence within it need not be completely artificial.

It is when evidence isto be offered within a trial that the strictures of the rules of evidence must be enforced more rigourously. In this case, I heard the evidence of Pagliaro on these points over objection by the Crown. Having done so, I found his evidence to behelpful on the points hereinbefore quoted, but not helpful as to his quasi-legal analysis of the police interviews. (Miller, supra, at paras.106 – 109)[Emphasis added.] [46] I believe in this case that the third question, “whether the manner in which Detective Kendel communicated with Mr. Soulierduring the police interview affected Mr.

Soulier’s understanding of what was said to him, given his cognitive limitations” requiresspecial scrutiny because of its proximity to the issue I must decide. Without hearing the evidence of Dr. Ducharme however, I cannotanswer that question. [47] This procedure was also anticipated in Abbey #1 by the Ontario Court of Appeal: A determination of the scope of the proposed expert opinion evidence and the manner in which it may be presented to the jury ifadmissible will be made after a voir dire. The procedures to be followed on that voir dire are for the trial judge to decide.

Sometimes theexpert must be examined and cross-examined on the voir dire to ensure that the proposed evidence is properly understood. At theconclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible. He orshe will also decide whether certain terminology used by the expert is unnecessary to the opinion and potentially misleading: see R. v. G.(P.), 2009 ONCA 32 , [2009] O.J. No. 121, 242 C.C.C. (3d) 558 (C.A.), at para. 16.

Admissibility is not an all or nothingproposition. [See Note 6 below] Nor is the trial judge limited to [page351] either accepting or rejecting the opinion evidence as tenderedby one party or the other. The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion,or edit the language used to frame that opinion: see, for example, R. v. Wilson, (ON SC), [2002] O.J. No. 2598, 166C.C.C. (3d) 294 (S.C.J.). (at para. 63) [Emphasis added.] [48] The admissibility of expert opinion evidence is not an all or nothing proposition.

So, I am not determining the issue ofnecessity of the expert opinion evidence prior to hearing the proffered evidence of Dr. Ducharme. 3. The Absence of an Exclusionary Rule [49] There is no exclusionary rule in operation in this case.

4. Is Dr. Ducharme a Qualified Expert? [ 50 ] The Defence concedes that Dr. Ducharme has not provided this type of opinion evidence in the past, however he argues that it is in the purview of psychologists to test and assess individuals and provide reports about how the test results affect the individuals’ functioning in a wide range of areas. [ 51 ] The Crown argued that Dr.

Ducharme is unqualified to provide evidence about the police interview, given that he has not been qualified as an expert to provide that type of testimony in the past, he has no training or expertise in the assessment of police interview techniques, nor how cognitive limitations intersect with police interviews. The Crown pointed out that in his review of Dr. Ducharme’s report, it was clear that Dr. Ducharme did not have a structure in mind when he reviewed the police interview. He appeared to select sections of the interview he thought were interesting and asked Mr.

Soulier what he had to say about those areas of the interview. [ 52 ] Again, it appears that having Dr. Ducharme available to answer some of these questions would be preferable to me making a premature determination about his qualification to testify about this issue. 5. Novel Application of Science [ 53 ] The Crown argues that although the science in this case is not novel, referring to the intelligence and other psychological testing and assessment conducted by Dr. Ducharme on Mr.

Soulier, the application of those tests to a police interview is novel, thus requiring a determination of the fifth threshold admissibility question as stated in Abbey #2 , “For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose.” The Crown argues that there was no scientific structure available to Dr. Ducharme and no established test pattern of how to assess the interview in light of Mr. Soulier’s cognitive characteristics, because Dr.

Ducharme was being asked to do something beyond his expertise and beyond the scope and purpose of the tests which were conducted. [ 54 ] This question is tied very closely to the threshold admissibility questions of necessity and qualifications. I am going to allow counsel to canvass questions in this area at the voir dire before I determine this issue as well. CONCLUSION [ 55 ] I am satisfied that the proffered evidence of Dr. Ducharme in Question 3 is logically relevant to the issue of the voluntariness of Mr. Soulier’s police statement. There is no exclusionary rule. I will hear the proffered evidence of Dr.

Ducharme before determining the threshold admissibility of that evidence on the questions of necessity, qualifications, and the application of his scientific testing and assessment tools in this context. “Original signed by:” C.A. DEVINE, P.J.