R. v. Soulier, 2020 MBPC 39

CITATION: R. v. Soulier , 2020 MBPC 39 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) M. Armstrong for the Crown ) - and - ) ) Winston Soulier ) ) M. Walker for the Accused Accused ) ) Reasons for Decision ) Delivered: August 31, 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 follow-up decision regarding the admissibility of expert evidence. The context is a voir dire to determine the voluntariness of the Accused’s police statement. The defence tendered an expert report and viva voce evidence of psychologist Dr. Del Ducharme on the issue of whether and how a severe language disorder might have affected Mr. Soulier’s ability to understand and answer questions in his interview with the police.

I determined in R. v. Soulier , 2020 MBPC 4 , that Dr. Ducharme’s proposed evidence was logically relevant to the issue of voluntariness of Mr. Soulier’s statement. Without hearing Dr. Ducharme’s testimony, I was unable to determine the remaining threshold issues of necessity, whether Dr. Ducharme was qualified to provide such an opinion, and whether a diagnosed language disorder from an intelligence test can be reliably applied in the context of a police interview. [ 2 ] Subsequent to that decision, Dr.

Ducharme testified in the voir dire . [ 3 ] Following his testimony, the Crown argued that threshold admissibility was not satisfied with respect to Dr. Ducharme’s ability to provide evidence about the police interview. The Crown argued further that in exercising my gatekeeper function, I should not admit any of Dr. Ducharme’s evidence, because it is not reliable. The Proposed Evidence [ 4 ] A statement of the proposed opinion evidence was filed as an exhibit in the voir dire as follows: 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. [ 5 ] Simply stated, Dr. Ducharme’s proposed evidence is that Mr.

Soulier has a severe language disorder first diagnosed by a school psychologist in 2015, that the language disorder would have persisted in 2018 at the time he was interviewed by the police, and that it affected his ability to understand and respond to questions in the police interview to the extent that the information he provided in the interview is unreliable. Mr. Soulier’s Background and Diagnosis with Severe Language Disorder

[ 6 ] Mr. Soulier is from South Indian Lake in northern Manitoba and is a member of the O-Pipon-Na-Piwin First Nations Band. He was born in 1999. He went to school in his community up until Grade 10 which is the highest grade in South Indian Lake, and he then transferred to a Frontier School Division school at Cranberry Portage, where he worked on Grades 9 to 11. He had an education assistant helping him in school in South Indian Lake. He moved to Winnipeg in 2016 and went to Children of the Earth School.

At the time of the alleged offence on March 18, 2018, he was in an adapted Grade 12 program at Children of the Earth. [ 7 ] He always had difficulty in school and usually had educational assistants working with him. In February 2015 he was referred to Frontier School Division psychologist Dr. Clemente Rohde for an assessment because of the learning challenges he was facing. Diagnostic assessments placed his reading skills at a Grade 1.9 level, his writing skills at a Grade 3 level and his math skills at a Grade 4 level. He required significant adaptations to the Grade 9 program.

Through various standardized testing, it was determined that Mr. Soulier’s intelligence was artificially depressed due to his severe deficits in language skills. He was diagnosed with a severe language disorder. [ 8 ] Dr. Rohde’s report was filed as part of the voir dire . His report concluded that Mr. Soulier’s overall intellectual ability was in the borderline classification (between 66 and 77), with an extremely low verbal comprehension score. Dr. Rohde’s report stated that the prognosis was “extremely poor” for Mr. Soulier to catch up to grade level because of the language disorder. Dr.

Ducharme testified that this is because a language disorder cannot be “cured.” Adaptations and remediation can assist a person who has a language disorder, but the language disorder cannot be improved. [ 9 ] Dr. Rohde concluded that: . . . Winston’s impaired language abilities coupled with his impairment in specific school adaptive functioning skills . . . showing a limited capacity to process information and respond appropriately to the linguistic demands of his grade of placement. (at p. 6) Dr. Ducharme’s Qualifications [ 10 ] Dr.

Ducharme has a PhD in Clinical Psychology and has worked as a clinician, supervisor and professor since 1996. Of particular relevance, he has worked with First Nations’ organizations and clients in northern Manitoba for several decades, providing clinical consultation and treatment for such organizations as the Manitoba Adolescent Treatment Centre (MATC), Marymound Centre, Turning Leaf, Rural and Northern Telehealth Services, and the First Nations and Inuit Health Branch. He has published many papers and publications, presented at conferences and trained many doctors and clinicians.

Since 2001 he has worked extensively in First Nations communities in northern Manitoba, especially as additional funding and services have been offered as a result of Jordan’s Principle. He travelled to Norway House First Nation for two days a week regularly between 1999 and 2016, conducting cognitive and mental health assessments with First Nations clients. He testified that he has conducted cognitive testing approximately 2000 times.

Over 70% of the clients have been First Nations people; 50% of the clients have been First Nations people from the north. [ 11 ] He recently retired from the MATC hospital in June 2020. Eighty-five percent of his work in the hospital involved cognitive testing and assessment, and interpreting tests done by other doctors and clinicians. [ 12 ] Since 1996, he has completed hundreds of child welfare and parental capacity assessment reports.

He has been qualified and has testified as an expert in child protection and family court proceedings 75 times. [ 13 ] He has not testified in a criminal trial and has not testified specifically about the impact of intellectual test results on a person’s ability to understand police officers conducting an accused police statement. He vaguely recalled testifying in a voir dire in a criminal trial in the past.

On cross-examination, it emerged that the defence had tendered him as an expert to testify in a murder voir dire with respect to a provocation defence about the effect of calling an Indigenous woman accused of murder a misogynist term. The evidence was not admitted. [ 14 ] Dr. Ducharme knows Dr. Rohde as a colleague and has seen between 50 and 100 of Dr. Rohde’s school assessment reports like the one tendered in this case. Language Disorder vs. Intellectual Disability [ 15 ] Dr. Ducharme provided detailed evidence about language disorders.

He explained what a language disorder is generally, and then specifically in the case of Mr. Soulier, how he receives and presents information. [ 16 ] Dr. Ducharme testified about the difference between an intellectual disability and a language disorder. A language disorder would not usually be apparent to someone without the training and expertise of someone like Dr. Ducharme. While it is immediately apparent when dealing with a low-functioning individual, it is not apparent when dealing with a person with a language disorder.

Moreover, often people with language disorders will “pretend”, to hide the disorder because they are ashamed of it and feel stupid and different than others. It is very common therefore, for people with language disorders to experience depression and anxiety. Dr. Ducharme testified that during his interview with Mr. Soulier, he saw the struggles with language that Mr. Soulier was having. He asked Mr. Soulier about it, and Mr.

Soulier became sad, recognizing his lack of understanding and how he has gone through life ashamed of that and how he has learned not to let people know. [ 17 ] Language disorders are not common. Dr. Ducharme seldom sees the diagnosis of “language disorder” in the hundreds of school psychologist’s reports he sees. [ 18 ] He testified that there were some differences in non-language areas between the intelligence tests administered in 2015 and 2019. Mr. Soulier scored much higher in the non-language areas in 2019. He accounted for the difference in Mr.

Soulier doing better on the adult test because the adult test has not been updated and does not include as many subtests involving language skills. The children’s test has more subtests in the perceptual reasoning area. Because the Wechsler Intelligence Scale for Children (WISC) test is used

primarily for school, more subtests are included, to provide more refined test results for educational purposes. The children’s test includes more questions than the adult test to assess complex concepts that are mediated by language. Mr. Soulier did very poorly on those tests. The adult (Wechsler Adult Intelligence Scale (WAIS)) test that he did with Dr. Ducharme when he was 18 years of age does not include comparable subtests. [ 19 ] Therefore, the fact that Mr. Soulier had better results on the non-language portions of the adult test conducted in 2019 was not surprising to Dr. Ducharme.

The low scores on the language tests remained low and confirmed the persistence of the severe language disorder. He testified: From a non-language performance point of view, at a concrete level, Mr. Soulier has average abilities. But if you assess that more fine(ly), where it’s more deeper in categorization and organizing and planning, where language is mediated, and metacognitive skills kick in, he does poorly. [ 20 ] Dr. Ducharme testified that the adult and children’s tests sample different levels of conceptualization.

He would not expect a person’s cognitive deficits to change significantly between the ages of 15 years and 10 months when the first test was done, and 18 years and three months, when the second test was done. He testified that by that time, the brain is starting to crystallize. While intelligence can vary a bit, a specific language disorder does not change over time. [ 21 ] Dr. Ducharme testified that a person with a severe language disorder can receive help to moderate and support their learning, but the language disorder remains.

They can learn ways to cope with it and use other areas of their brain in understanding communication. Dr. Ducharme also screened to see if Mr. Soulier’s reading had improved since Dr. Rohde’s report. It had not. It was still at a Grade 4 level. So, if there had been any remediation, it had not improved his reading skills. Methodology [ 22 ] To prepare for his report with respect to Mr. Soulier, Dr. Ducharme reviewed Dr. Rohde’s report and the videotaped police interview and transcript. He took notes on the transcript about Mr.

Soulier’s language and understanding, which he provided to counsel. [ 23 ] He then met with Mr. Soulier, and in a five-hour session, administered psychometric testing, observed his behaviour, reviewed the police interview with him using the transcript, and conducted a clinical interview. He made further notes on the transcript. He considered the interview session lengthy, and sufficient. If he believed he required more time to assess Mr. Soulier, he would have brought him back for an additional interview. [ 24 ] Dr. Ducharme testified that the intelligence test conducted by Dr.

Rohde on December 2, 2015 was valid and reliable. He administered the adult version of the same intelligence test that Dr. Rohde used in 2015. The child’s test, called the Wechsler Intelligence Scale for Children (WISC), is used for people under the age of 17; the adult version is called the Wechsler Adult Intelligence Scale (WAIS) for people 17 years of age and older. [ 25 ] Dr. Ducharme testified that the test is not “normed” for First Nations people, so it must be used with caution.

He testified in cross-examination that the control group for the WAIS test (between 17 and 90 years) is comprised of 2,200 people from the United States. In Canada, an additional 688 people are added. Dr. Ducharme agreed it would be possible that none of the people in the control group are Indigenous. Because of the American slant, including the subject matter of some of the questions (for example, one of the questions on the test is “Who was the President of the United States during the Civil War?”), allowances have to be made for a Canadian subject. [ 26 ] Dr.

Ducharme testified that First Nations people in their First Nations’ communities can be expected to score 12 to 15 points lower on verbal communication, compared to the white population. This is because of culture and how language is used, and the quality of education received, including attendance. [ 27 ] Therefore, Mr. Soulier’s answers would be compared to those within his age strata and with the lens of being a Canadian Indigenous person from the North. Because of his work with children and adults with disabilities, and his work with First Nations people, Dr.

Ducharme is often consulted on the validity and reliability of tests. He described assessment as an “art”, notwithstanding its scientific base. He testified that “you can go off the testing format a bit” to test for certain issues and to extrapolate from that. In terms of viewing his test results through a cultural lens, if Mr.

Soulier had scored average in the non-language areas of testing and 12 to 15 points lower in the language areas, he would be considered “normal” within the First Nations group of people, but in fact, his performance in the language areas was significantly lower than his norm group. [ 28 ] Dr. Ducharme did not have a pre-determined methodology in reviewing the police interview. He watched it and noted things that stood out for him. [ 29 ] He testified that what he found most helpful was reviewing and dissecting the interview with Mr. Soulier. His focus was on Mr.

Soulier’s comprehension and at what level he was comprehending the interview, and how the language disorder possibly affected that. He testified that reviewing the interview with Mr. Soulier was not about determining whether he was guilty, or if he was telling the truth. [ 30 ] His focus was therefore not on the police techniques. The approach taken by the police was not the issue for him. Dr. Ducharme testified that his interest was in how Mr. Soulier understands conversation. [ 31 ] He did not consult with Dr. Rohde or interview any school personnel, family members or other corollaries.

He testified that although this might have provided more information about how Mr. Soulier functions with the language disorder, he viewed the question about whether the language disorder might have affected his ability to receive and convey information in the police interview as a narrow one, that he was able to accomplish without corollary information. There was also a question of being able to provide the information in a timely fashion. Results of Dr. Ducharme’s Assessment

[ 32 ] Dr. Ducharme confirmed Dr. Rohde’s diagnosis of a severe language disorder which existed in 2015. Mr. Soulier’s scores on all the subtests involving language were very low, whether on the child test or the adult test conducted in 2019. [ 33 ] Dr. Ducharme testified that the severe language disorder would have been present when Mr. Soulier was interviewed by the police in 2018, and it still exists today. [ 34 ] Dr. Ducharme opined that the language disorder affects how Mr. Soulier receives and presents information. [ 35 ] In

summary, Mr. Soulier does not have a significant intellectual deficit. He has a language disorder. The language disorder, as already indicated, will persist across time. Mr. Soulier had the language disorder in 2018, as he still does today. A language disorder does not diminish; the best that can be done is accommodate the disorder with adaptations in learning and communication. [ 36 ] Dr. Ducharme testified that Mr. Soulier understands language at a 10-year-old level.

He testified that although 10-year-olds can engage in general conversation, if the language becomes “deeper”, or emotion is added to the mix (because emotions impact how we receive and express information) it goes beyond the capability of the average 10-year-old. [ 37 ] Dr. Ducharme explained that it is approximately at the age of 10 that humans’ higher reasoning skills, or metacognitive skills, start to develop. These are skills such as reasoning, judgement, problem-solving, predicting, and how one integrates and stores information. Metacognitive skills take a person to a higher level of understanding concepts.

These skills are not developed in Mr. Soulier. [ 38 ] As a result of lacking these metacognitive skills, Mr. Soulier has a hard time understanding metaphors and allegories with underlying meanings, unless they are expressed at his level of conceptual language, which generally means they would have to be expressed in concrete language at his level of vocabulary. [ 39 ] In addition to the test results, Dr. Ducharme was able to observe in his interview that Mr. Soulier has difficulty in expressing himself. The language disorder manifested itself. [ 40 ] Dr.

Ducharme testified that what stood out in watching the interview with Detective Kendel was how Mr. Soulier handled his stress. Dr. Ducharme stated that, “He would say a certain thing and stick with it and then he would just veer off.” Dr. Ducharme also observed Mr. Soulier’s behaviour of crying, curling up in a ball and banging his head on the wall, as young, regressive behaviour, taking him to a lower developmental age. [ 41 ] Dr. Ducharme testified about Detective Kendel’s use of the analogy of the long-distance truck driver in the interview. In attempting to encourage Mr.

Soulier to talk after receiving advice from his lawyer to exercise his right to silence, Detective Kendel told Mr. Soulier the story of a man who had been accused of breaking into his ex-wife’s house and raping her. After the man’s arrest and during the police interview, he refused to answer questions. He was taken to jail. Two weeks later, the police learned from the trucker’s employer that the man had been in Texas at the time of the alleged offence. He was still in jail, despite [evidently] being innocent. Dr. Ducharme testified that Mr. Soulier did not understand the analogy.

The part he understood was the importance of telling the truth. [ 42 ] Dr. Ducharme testified that the manner in which Detective Kendel communicated with Mr. Soulier affected his understanding of what was said to him. Detective Kendel was not speaking at a 10-year-old level. [ 43 ] Dr. Ducharme referred to the prescriptive suggestions in the 2015 assessment report done by Dr. Rohde, for examples of how better comprehension can be achieved. Dr. Ducharme testified that he agreed with them and that they are standard in the field. Some of the strategies from Dr.

Rohde’s report include semantic mapping, word banks, word sorting, interspersing verbal information with visual cues and pre-teaching by “doing” rather than saying. For example, he testified, if the officer had used simpler language and broken down the interview a bit and tied the information to personal things that Mr. Soulier understood, Mr. Soulier would have understood more of what was said to him. Dr. Ducharme also used the example of using a ladder to describe politics, with the Chief at the top of the ladder, and how decisions are made and how people feel about them. They are basic strategies.

Argument by the Crown and Defence [ 44 ] The defence argued that the contextual approach to determining voluntariness of the police statement, required by R. v. Oickle , 2000 SCC 38 , means that I must consider Mr. Soulier’s statement in the context of his language disorder. Dr. Ducharme’s evidence is scientific information that I do not have knowledge about. He also argued that Dr. Ducharme was qualified to provide his opinion evidence to the Court. Some of the evidence is not opinion, it is about the language disorder, previously diagnosed by Dr. Rohde.

There is no contrary evidence to suggest he does not have a language disorder. Finally, he argued that the evidence is reliable. Dr. Ducharme is a qualified clinical psychologist who has conducted over 2000 assessments using the same tools he used in this case. [ 45 ] The Crown argued that allowing Mr. Soulier to review his police statement with Dr. Ducharme and allowing Dr. Ducharme to provide further evidence about it, was a form of oath helping, particularly because Dr.

Ducharme is not qualified to assess the dynamics of a police interview and how that might intersect with cognitive limitations. [ 46 ] In argument, the defence clarified that he is not asking me to adopt all the commentary in the expert report about the interview, just the truck driver metaphor and the conclusions. The Crown argued however, that Dr. Ducharme’s evidence that Mr. Soulier found the truck driver analogy difficult, or that a person with a language disorder would find that difficult, is unnecessary. It is unnecessary because Mr. Soulier testified to it.

If I accept it, it is oath helping. [ 47 ] The Crown also argued that Dr. Ducharme’s methodology lacked rigour and was not reliable. He did not interview collaterals. He did not provide the results of the WISCS test that he administered to Mr. Soulier. Dr. Ducharme testified that he did not release the raw data for ethical reasons; he testified that in the past these test results have found their way into courts and venues without the ability to have them explained by people competent to explain them.

[ 48 ] The Crown also argued about the reliability of the WISC and WAIS tests for Indigenous people, as the norm group is largely American and not Indigenous. [ 49 ] Ultimately, the Crown argued that no expert has been permitted to testify about a police statement in this specific manner. Legal Relevance [ 50 ] I had previously decided that the evidence about the Accused having a language disorder that may have affected his police interview was logically relevant to the issue of whether the statement was voluntary.

At this stage of the analysis, I am to consider the legal relevance of the evidence and whether its probative value is outweighed by its prejudicial effect. [ 51 ] To be voluntary, a statement must not be provided in circumstances of oppression and must be the product of an operating mind.

The modern rule with respect to voluntariness encompasses the negative right not to be tortured or coerced into making a statement, as well as the requirement that the person have an “operating mind.” [ 52 ] Generally, all relevant factors and circumstances should be considered in terms of determining whether a statement is voluntary. As Justice Iacobucci stated in Oickle : The application of the rule will by necessity be contextual.

Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession. (at para. 47) [ 53 ] It is recognized that the determination of oppressiveness has a subjective component – would a person in the circumstances of the accused experience the conditions as oppressive? This was recognized in Oickle , as well as applied in R. v. Bohemier , [2002] M.J.

No 313 (Q.B.) where Justice Monnin rejected the accused’s evidence that one of the police officers threatened him, but found, because of the evidence of his treating psychiatrist, that the statement was not voluntary, based on an atmosphere of oppression and operating mind considerations (at para. 47). The accused had schizophrenia, low intellectual functioning and FASD. His psychiatrist testified that the accused would be quite passive when taking his medication and willing to please.

He reacted poorly to stress, which brought about disorganization in his thought process, rendering him less coherent, therefore being in a police interview by himself would be stressful and anxiety-provoking for him. The psychiatrist also testified that although the accused might understand his right to counsel and the right to silence, he might not have the ability to follow through on the concepts. [ 54 ] In Horvath v. The Queen , [1970] 2 S.C.R., the lack of voluntariness constituted a “complete emotional disintegration.” [ 55 ] I have watched the police interview with Mr. Soulier and reviewed the transcript.

At points in the interview, Mr. Soulier is crying, curled up in the fetal position, banging his head on the wall and appears to be generally distressed. [ 56 ] I am satisfied that evidence about Mr. Soulier’s language disorder and whether he understood the police officer and communicated what he wanted to communicate to the officer is legally relevant to whether his statement was voluntary. Necessity [ 57 ] 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 about Mr. Soulier’s testing and diagnosis of a language disorder, and assessing the manner in which Detective Kendel communicated with Mr. Soulier during the police interview and how that affected his understanding of what was said to him, given his cognitive limitations. [ 58 ] I heard testimony from Mr.

Soulier on the voir dire that he did not understand some of the questions asked by Detective Kendel, and that he 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 credibility analysis, as opposed to understanding that there may have been other things in operation at the time of the interview. [ 59 ] Additionally, I can review the 2015 assessment done with Mr.

Soulier, which stated that he had a language disability. I can also review the part of Dr. Ducharme’s assessment report, which reports on his own psychometric testing, as well as the clinical interview he did with Mr. Soulier. I also have the ability to review the police videotape of the interview, along with the written transcript. [ 60 ] But, I do not have the educational, experiential background of Dr.

Ducharme as a clinical, behavioural psychologist with 26 years of experience working with people, especially First Nations people from the north, with cognitive limitations and mental deficits, in order to correlate those scientific and clinical findings to the exercise of properly assessing Mr. Soulier’s police interview. Without Dr. Ducharme’s particular experience and skill, I cannot properly understand the assessment report of Dr. Rohde, understand the language disorder, nor can I properly view the interview with Mr. Soulier’s unique characteristics in mind, which is what I am required to do. Without Dr.

Ducharme’s assistance, I cannot apply the information provided about the test results and clinical information about Mr. Soulier’s receptive and expressive 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. [ 61 ] The Crown argued that not only is Dr. Ducharme’s evidence on this last question unnecessary, it also trenches on the very conclusion that I must decide, that is, whether Mr. Soulier’s statement was voluntary.

The Crown argued that the trial judges and Court of Appeal rejected the evidence of experts in very similar circumstances in R. v. Pearce , 2011 MBQB 99 , 2012 MBQB, appeal allowed, 2014 MBCA 70 and 2016 MBQB 14 . [ 62 ] It is important not to conflate voluntariness with the ultimate reliability of a police confession. In the second Pearce trial, experts were tendered first at the voir dire on the issue of voluntariness, and later at the trial on the issue of whether the statement by the accused was a false confession. Justice Martin determined that the statement was voluntary.

He allowed the psychologist to testify about

the accused’s IQ, his general personality traits and about the Reid police interrogation techniques. [ 63 ] As to the ultimate reliability of the statement and whether it was a false confession, the defence tendered the expert on the issue of how the Reid technique rendered the interview suspect.

Justice Martin allowed general evidence about the Reid Technique, but not on whether the statement made by the accused was false or true, as that was an issue for the trier of fact. [ 64 ] That is unlike this case, where the expert has been tendered to provide evidence relevant only to the issue of the voluntariness of the statement. [ 65 ] In this case, Dr. Ducharme’s evidence was tendered by the defence to assist in the determination of the voluntariness of the statement, which is different than the purpose for the expert evidence being tendered in Pearce .

Expressed in terms of “reliability”, in the context of a voir dire as to the voluntariness of a police statement, it is threshold, or putative reliability that is determined, not ultimate reliability. [ 66 ] Dr. Ducharme was not asked to provide an opinion about the reliability of Mr. Soulier’s statement or whether it was a false statement, or whether it was voluntary, which is the question I must ultimately determine. Dr. Ducharme did in his written report and his testimony, however, state that because the officer did not take the severe language disorder into account in questioning Mr.

Soulier, and adapt his language to ensure Mr. Soulier understood, the reliability of Mr. Soulier’s answers cannot be considered reliable. [ 67 ] I am mindful that this comes close to the question I must ultimately decide. [ 68 ] There are no cases before me where an expert witness was permitted to view a police statement with an accused person and testify about whether the accused person understood or appreciated the questions and gave answers that were reliable, given the accused person’s cognitive or other mental limitations or particular circumstances.

This is essentially what defence counsel is requesting of me in this case. [ 69 ] I am satisfied that I require the evidence of Dr. Ducharme to answer the first two questions. [ 70 ] I recognize that the third question, “whether the manner in which Detective Kendel communicated with Mr. Soulier during the police interview affected Mr. Soulier’s understanding of what was said to him, given his cognitive limitations” requires special scrutiny because of its proximity to the issue of voluntariness, which I must decide. I agree with the Crown.

I will also not accept any evidence from his report or testimony going so far as to state that the statement was unreliable. [ 71 ] But, I will also allow Dr. Ducharme’s evidence about the long-distance truck driver as an example or demonstration of the type of analogy that a person with a severe language disorder may have difficulty understanding. It is necessary for me to have this evidence to fully consider the voluntariness of the police statement. Exclusionary Rule [ 72 ] Although he did not identify any other exclusionary rule at the time of the hearing on threshold admissibility of Dr.

Ducharme’s evidence, the Crown argued during his testimony that Dr. Ducharme’s evidence on the third question, that is, whether Mr. Soulier understood Detective Kendel’s questions, was a form of oath helping. [ 73 ] I believe that this it is no longer an issue, as I am only allowing examples of the types of communication and higher forms of expression that are difficult for a person with a severe language disorder to be able to understand. This is not unlike any psychological or psychiatric expert evidence that assists in understanding the behaviour or words of an accused person.

This evidence has been accepted in many cases, including Pearce , Bohemier and R. v. Lavallee , [1990] 1 S.C.R. Properly Qualified Expert [ 74 ] The defence conceded that Dr. Ducharme has not provided this type of opinion evidence in the past, however he argued that it is in the purview of psychologists to test and assess individuals and provide reports about how the test results affect the individual’s functioning in a wide range of areas. [ 75 ] The Crown argued that Dr.

Ducharme is not qualified 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. [ 76 ] The Crown was critical of Dr. Ducharme’s lack of scientific methodology to assess the police interview. This is closely related to his argument that this is a novel application of Dr. Ducharme’s testimony about a language disorder applied to the analysis of a police interview, which I discuss further in the next

section of this decision. [ 77 ] I am allowing his evidence with the noted exceptions, on the basis that Dr. Ducharme is not analyzing the police questions so much as providing expert opinion about the likelihood of the subject not understanding. [ 78 ] He is eminently qualified to assess language disorders, and in particular, testing and assessment of Northern Indigenous people, like Mr. Soulier. [ 79 ] Given that I have already decided to disallow him to “parse” the interview questions and analyze how and why Mr. Soulier did not understand each question, these criticisms of his qualifications are moot.

[ 80 ] He is not being asked to provide an analysis of the reliability of the statement and whether it is a false confession, using a scale such as the Gudjonsson Suggestibility Scale (GSS) test. [ 81 ] I am satisfied he is qualified to provide the opinion evidence, answering questions one and two and evidence about Mr. Soulier’s comprehension and expressive language generally and his difficulty with conceptual language, including the truck driver analogy.

Novel Application of Science [ 82 ] The Crown argued 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 R. v.

Abbey , 2017 ONCA 640 , “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. [ 83 ] There is no question about the ubiquitous use of the WAIC and WISC in criminal courts.

They are frequently found in presentence reports and FASD reports and in psychiatric and psychological reports. They are used in a variety of applications in criminal matters. [ 84 ] Some of the limitations of the WAIS and WISC were raised by this witness, specifically that the norm group is primarily American and non-Indigenous. However, Dr. Ducharme is uniquely positioned and qualified to extrapolate and interpret these test results in light of his decades-long experience working in the North in First Nations communities. [ 85 ] I am satisfied that the methodology utilized by Dr.

Ducharme in this case was appropriate for the first two questions he was asked to answer, and generally, how the language disorder affects comprehension and communication in a real-life setting. It is not necessary that a particular testing methodology would be required to provide this information in this particular case, with this particular accused by this particular psychologist. CONCLUSION [ 86 ] I am admitting the following evidence of Dr. Ducharme: 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 about Mr. Soulier’s lexicon, his receptive and expressive communication skills, his tendency to pretend to understand when he does not, and his inability to understand more complex forms of language, such as analogies, including the example of the long-distance truck driver analogy. I am not admitting Dr.

Ducharme’s report evidence about the results of his questioning Mr. Soulier about the details of the police interview and Mr. Soulier’s answers to that portion of the interview by him. I am satisfied that this evidence meets the threshold requirements of admissibility. I am also satisfied in considering the legal relevance of the evidence, its necessity, reliability and the absence of bias, that the benefits of admitting this evidence outweigh its risks. “Original signed by:” C.A. DEVINE, P.J.