2011 QCCA 703, 2011 QCCA 703

Unofficial English Translation D.R. c. R. 2011 QCCA 703 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002349-095 (610-01-004266-072) DATE: April 7, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. FRANÇOIS PELLETIER, J.A. JACQUES DUFRESNE, J.A. D. R. APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT; - On the appellant’s appeal from a guilty verdict of second degree murder, rendered on February 17, 2009, by a jury of the Superior Court, Criminal Division, District of Témiscamingue, presided by the Honourable Mr. Justice Claude C.

Gagnon; [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Dufresne J.A., with which Thibault and Pelletier JJ.A. agree: [ 4 ] ALLOWS the appeal; [ 5 ] SETS ASIDE the appellant's conviction; and [ 6 ] ORDERS a new trial. FRANCE THIBAULT, J.A. FRANÇOIS PELLETIER, J.A. JACQUES DUFRESNE, J.A. Mtre Marc Ouimette For the appellant Mtre Benoît Lauzon Criminal and penal prosecutor For the respondent Date of hearing: January 13, 2011

REASONS OF DUFRESNE, J.A. [ 7 ] The appellant acknowledges having caused the death of his maternal grandfather on August 17, 2007. At trial, he submitted a defence of not criminally responsible on account of mental disorder. [ 8 ] The judge presented three possible verdicts: not criminally responsible on account of mental disorder, guilty of second degree murder, or guilty of manslaughter.

The jury found him guilty of second degree murder, which required proof beyond a reasonable doubt that the appellant had intended to cause the death of his grandfather or had intended to cause bodily harm that he knew would likely result in his death, and that he was indifferent as to whether or not death ensued. [ 9 ] The issue in appeal can be stated as follows: was the appellant given a fair trial? To which we must answer that he was not.

BACKGROUND [ 10 ] In all, twenty-eight witnesses were heard, including two experts, psychiatrists Pierre Gagné (for the defence) and Sylvain Faucher in rebuttal (for the prosecution). The appellant testified in his defence, as did his mother and his maternal grandmother who had been divorced from the victim for thirty-five years, but who had maintained a cordial relationship with him. [ 11 ] At the time of the tragedy, the appellant was twenty-three years old (born on [...], 1984). He has a history of mental health issues dating back to 2006, which are, or might be, linked to drug use.

The appellant began using various drugs at thirteen years of age. [ 12 ] He has had several stays in psychiatric wards. The defence expert, psychiatrist Pierre Gagné, explained that the appellant was seen on April 16, 2006, by a psychiatrist [translation] "who raised the possibility that he might be suffering from a non-specific psychotic disorder, possibly due to drugs".

Later that year, on August 5, 2006, the appellant was taken to the emergency room by police officers because he was babbling incoherently. [ 13 ] On August 18, 2006, he was once again taken to the emergency room after he declared that he was [translation] "God" in a McDonald's restaurant and uttered death threats against an employee while in possession of a knife. In the ensuing trial, he was declared not criminally responsible on account of mental disorder. The appellant was consequently hospitalized on September 5, 2006, in the Malartic psychiatric hospital.

The Review Board discharged him on February 17, 2007, subject to some conditions. During his hospitalization, he had been transferred to the Philippe-Pinel Institute for a one-month stay. He left Pinel with a diagnosis of [translation] "psychoactive substance induced psychosis, antisocial personality disorder, psychoactive substance abuse". [ 14 ] The appellant then lived with his mother, who ensured that he respected the conditions imposed, such as taking medication and abstaining from drug use. He left his mother's home in May of 2007 to live in Rouyn-Noranda.

According to his testimony, that is when he began using drugs again and stopped taking his medication. [ 15 ] He was once again hospitalized in the psychiatric ward from May 28, 2007, to June 5, 2007. Upon leaving the psychiatric hospital, D. R. settled in Rouyn-Noranda. His lifestyle was unstable. He stopped taking his medication and began using drugs again, in violation of the order by the Tribunal administratif du Québec. [ 16 ] According to the testimony of the appellant's mother, she notified the attending psychiatrist of her son's situation on several occasions.

On August 11, 2007, the appellant's mother and grandmother went to see him in Rouyn-Noranda. They described him as being quite agitated, perturbed, and speaking incohenrently. That day, his mother asked the police to step in. The police officers met with him, but did not intervene. [ 17 ] On August 15, 2007, the appellant returned to his mother's home. [ 18 ] The evening before the tragedy, on August 16, 2007, the mother tried to have her son enter a psychiatric ward, but he refused. That day, she drove him to Rouyn-Noranda. He then decided to continue on his way up to Town A to visit his grandfather.

In possession of two amphetamine tablets (commonly referred to as "speed"), he took one on August 16, 2007, and the other one on August 17, 2007, as he made his way to his grandfather's. [ 19 ] Upon arrival, an altercation occurred between the appellant and his grandfather. The appellant reacted particularly violently during this altercation. The victim sustained numerous injuries to the ribs and there were two visible cuts made by a pointed object.

The forensic pathologist identified the cause of death as follows: [translation] "haemorrhagic and cardiogenic shock resulting from lacerations to the heart and the thoracic aorta caused by compression and crushing of the thorax". The victim's body was found outside the house, near the cedar hedge. [ 20 ] The appellant left the premises in his grandfather's vehicle. He stopped first in Rouyn-Noranda to get drugs (marijuana) and then went on to Val-D'Or. He was stopped twice on August 17, 2007, for speeding. Each time, he was issued a speeding ticket.

He then continued on his way to Mont-Laurier where he slept in the car. [ 21 ] On the morning of the following day, August 18, 2007, he stole gas in Mont-Laurier and headed south. In the afternoon, he stole gas again and headed north. [ 22 ] At around 5 p.m. on August 18, 2007, the appellant was intercepted in the La Vérendrye Park by the Sûreté du Québec for the gas thefts. He then admitted to the police that he had caused the death of his grandfather. In fact, police officers found a confession written on the back of the two speeding tickets he had received the day before. GROUNDS OF APPEAL

[23] The appellant raises six grounds of appeal, which he states as follows: 1. Did the judge fail to warn the jury regarding the evidence of the appellant's post-offence conduct? 2. Was the judge's instruction regarding the motive incomplete? 3. Did the prosecution's expert witness exceed the limits of his mandate? 4. Should the judge have withdrawn the common sense inference of intoxication and mental disorder? 5. Were the instructions regarding mental illness sufficient? 6.

Should the judge have warned the jury about the appellant's health? [24] Of these six grounds of appeal, two set themselves apart (grounds 1 and 3) and should be addressed first. They shall berestated to highlight their key elements. ANALYSIS [25] For the following reasons, I find that the first and third grounds of appeal are sufficient to justify the intervention of this Courtand to order a new trial. For a better understanding, I believe it is useful to address the third ground first before undertaking our analysisof the first ground.

The third ground of appeal: Did the testimony of the prosecution's expert witness require the judge to intercede or to warn thejury? • Positions of the parties [26] The appellant criticizes the prosecution's expert, psychiatrist Sylvain Faucher, for having exceeded his mandate by suggestingto the jurors that they not believe the appellant's testimony because of his behaviour after the death of the victim.

His testimony in thisrespect may have unduly influenced the jury because he failed to limit his opinion to the absence of mental disorders in the appellant atthe time of the facts giving rise to the victim’s death. Instead, the appellant alleges that his testimony suggested the existence of a motive,whereas the evidence was to the contrary. [27] The respondent answers that its expert did not usurp its role; it maintains that he did not unduly take the prosecution's side.His testimony was nuanced and he never gave an opinion as to the appellant's credibility.

In the respondent's view, the expert limitedhimself to expressing the opinion that the appellant was [translation] "neither in the grips of psychosis nor the victim of uncontrollableand explosive rage during the attack".

Finally, it is of the view that the warnings to the jury regarding the expert evidence were entirelysufficient to ensure that the testimony of the expert Faucher did not affect the fairness of the trial. • Principles and their application [28] Expert testimony is necessary when an issue requires particular knowledge that the judge or the jury may not have.[1] Thus,psychiatric testimony meets this requirement and constitutes expert testimony.[2] [29] In Mohan,[3] the Supreme Court, per Sopinka J., discussing the criterion of necessity as it relates to expert opinion evidenceto help the trier of fact, specifies the scope or limits of expert testimony on a fundamental issue, the ultimate issue rule: As in the case of relevance, discussed above, the need for the evidence is assessed in light of its potential to distort the fact-findingprocess.

As stated by Lawton L.J. in R. v. Turner [1975] Q.B. 834, at p. 841, and approved by Lord Wilberforce in Director of PublicProsecutions v. Jordan, [1977] A.C. 699, at p. 718: An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience andknowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of anexpert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult.

The fact that anexpert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature andbehaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think itdoes. The possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions.

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. [Emphasis added.] [30] Thus, the testimonies of psychiatrists Gagné and Faucher are absolutely admissible when they give their opinion on thepresence or absence of mental illness in the appellant at the time of the tragedy.

The same cannot be said, however, when thesedepositions stray from medical opinion to an assessment of the evidence (facts unrelated to their expert report and credibility). This is the

case, however, with the testimony of the expert Faucher. [ 31 ] His testimony, although relevant when expressing his opinion on the appellant's mental health and state at the time of the tragedy, exceeds his task as an expert when he expresses his opinion on the facts (his assessment of the evidence) and on the credibility of the appellant's testimony, as the following excerpts from his testimony show: [translation] ... So, I asked myself who was: if... if Mr. G. – Mr.

R. had gone to help his, his grandfather to do the house, why then, afterwards, when we are... we... we look at the scene, we find out that a telephone has been... the telephone cord was cut? I find it difficult, personally, to make a logical connection between going to help someone and cutting their... their telephone line. If it was him. Because he never told us that he was the one. He remembered that there was something about the telephone, but he never said...

The other thing too, if he lost his mind, if he went into an explosive rage, as doctor Gagné suggested, I also find it difficult to connect that explosive rage with the fact that he cut the telephone cord. And I also find it difficult to understand why the grandfather would cut the telephone cord himself. ... Admittedly, these elements are more consistent with an explosive rage because they are more of a direct attack, they are more hurtful remarks that he may suppose. However, I still cannot understand how rage would explain someone cutting the telephone cord. Or why rage would make him leave with the car.

True, he is not at his home, but at his grandfather's, he is not in the city, he is not in Quebec City, there are no buses on the corner, that he could take. True, he did not have many options if he wanted to leave the premises: he arrived on foot and the only other way of leaving was with the car. But why, if he was enraged — I've been to Guérin and I've been to Rouyn-Noranda, here a few times since the trial began, and I know how long it takes — why didn't he cool down between Guérin and Rouyn-Noranda? Why did his emotions not return somewhat to normal? Why was he on the run for... until the eighteenth (18th)?

These are, in my opinion, much less consistent with rage. ... ...But here, there is none of that. Here's a guy who took the car , he may even have taken money from his grandfather , and the first thing he did was to go see some guy he knew, S.... you'll have to help me with the last name. ... Using — and, well it's up to you, the jurors, to determine whether that's the case — but using the hypothesis that it was Mr. R. who dragged his grandfather to the hedge , I see...

I struggle with the idea of rage, why, if he was enraged, would he...why would he have dragged his grandfather, and why not take him to a less visible location? Why did he need — if we surmise this — to hide the body in whole or in part? And why didn't he tell S. the whole truth? A few hours only after the events, why did he tell S.: [translation] "I, I have a car, somebody signed for me so I could get one"... Why, when S. realized that he had money, did he tell him some story about getting a job that paid twenty-eight bucks ($28) an hour?

Why did he make that all up? [Emphasis added.] [ 32 ] The respondent argues that the testimony of its expert was nuanced, but it was nothing of the sort, as shown by the above excerpts, where the expert exceeded the limits of his psychiatric expertise. [ 33 ] Instead of explaining the meaning of [translation] "excessive rage", the expert Faucher at times interpreted the facts adduced, without them having any medical consequences per se . For example, when he testified on the cut telephone cord, he seemed to take it as fact that it was cut by the appellant, whereas that finding of fact was the jury's to make.

Also, according to the witness, the cut cord, which he attributed to the appellant, was proof that the appellant did not go to his grandfather's to help him with odd jobs. This inference drawn from the evidence did not fall within the ambit of the expert's opinion. In much the same way, he raised a factual hypothesis that did not fall within his area of expertise by asserting that the appellant dragged the victim's body to the hedge rather than that the victim fell there as a result of the blows delivered by the appellant.

Thus, he gave his assessment of the evidence. [ 34 ] These are only a few of the many examples, but the influence of an expert's opinion on the jury should never be underestimated. Warnings given by witnesses during their testimony do not dispense judges from the necessity of also giving such warnings in their instructions. [ 35 ] Moreover, the Crown expert related a case of which both he and the expert Gagné were aware.

We cannot know from the testimony of the psychiatrist Faucher if the behaviour described therein was the usual post-offence behaviour of a person having committed a serious crime affecting his mental state or whether the case turned on its own facts since the witness did not tie any medical or scientific consideration or finding into the example he gave.

This is how the prosecution's expert forcefully and in great detail recounted this particular case, without tying it into his medical or scientific expertise: [translation] Let me give you an example, which both doctor Gagné and myself used, the same distribution of roles, but we both agreed on one point: this is someone who has killed his best friend. He kills him in a context where he's taking drugs. That best friend, they have a discussion, it's acrimonious, according to the accused, and at some point, he decides he's going to hit his best friend. And he does it more than once.

He does it once inside the house, and once outside. He went to get him, he brought him back inside. But throughout, and he said so as soon as the first witnesses come to see him, and one of the witnesses is his brother, he said: [translation] "Go see him... Whatshisface", there, he has a nickname I can't remember, but: [translation] "Go see the victim, he's faking, he's fooling around, you know, he may be hurt, OK, but he's not dead, you know". And he insisted on the fact that the victim was faking.

The accused was in his own home, OK? But he didn't...he didn't run away, he didn't leave, he stayed there. And from the first people, he repeated it to the two or three people who came to see him, because there was also at least one friend who came, with the brother, there was another person, and each time, he would answer, he would say: [translation] "He's faking, he's making a big deal out of...". And he only stopped saying this when his brother told him: [translation] "No, no, he's dead. I checked for a pulse, there is no pulse, there's nothing going on".

And this guy, at that moment, he collapsed, he became like... he went quiet, didn't say anything, he was dumbfounded by the information, you know? So, for me, there was rage, you see? He was angry, this guy had a very difficult existence at the time.

He had bought a cottage – he had lost an arm – so he was no longer able to care for it, and it was his life's dream, he was fighting with his girlfriend, his companion, he was having a tough time at work, in short, a lot of things were not going well in his life, and then his friend, whom he had just cornered and whom he had known a long time and therefore knew his weaknesses and, you know, under the influence of alcohol first and then drugs, it's as if the friend was on the receiving end of all of this guy's pent-up anger and when he came to, well the only... explanation that he could muster wasn't: [translation] "I did this, I didn't do that", you know. [translation] "He's only faking, he's only...".

OK? But he stayed put, and then, well, he told his story, and he told the police officers the same story. So, for me, I drew a parallel, we are not... that is not the case here, this is not someone who stayed put, he left, this is somebody who took advantage, if you will, of the events, because he went to get some dope, and we don't know if it was with his grandfather's money, S. mentioned a wad of cash, did he really get it from the grandfather, we don't know. That will be up to you...that will be up to you to decide that. But he took advantage of the car, a nice black car, a convertible, and he went on the run.

And he only stopped running when he ran out of cash. All that was found on him was a buck seventeen ($1.17), so then he had to steal gas to make the car run. Well, and that's when things came to an end. But I also think that it was the time, at some point, he saw that there was something that... he realized, he didn't realize in the sense of taking... taking... In my opinion, he knew that what he did was wrong, but... he realized then, that he was going nowhere with what he did.

So, for me, that's why there was no rage in my opinion associated with the event, rage was not the impetus to act. [ 36 ] An expert witness necessarily has influence over the jury. Jurors are generally greatly interested in the expert's specific knowledge in an area of expertise that is often unknown to them. When he testifies from his expertise, the weight given to his testimony does not run the risk, at least a priori , of creating distortion or imbalance, especially since his technical, medical, or scientific point of view in relation to the facts of the case may be the focus of contradictory evidence.

When an expert states his assessment of the facts, however, or makes a statement about the credibility of the witnesses or draws inferences from the evidence without any overtones having to do with his area of expertise, the risk of causing harm to the accused is real. A specific warning from the judge to the jury is then required to restore the balance. A specific warning that was called for here, but which did not occur. [ 37 ] The expert Faucher's

interpretation of some of the facts required a specific warning to the jury. Although the general instructions were sufficient to counter the risk that the jury assign too much weight to the

interpretations or factual inferences of this expert, his testimony nonetheless overstepped the limits of his expertise. [ 38 ] Indeed, when examined by the Crown, the expert Faucher stated a personal opinion on the facts adduced, submitting a purely speculative hypothesis that was closer to making an argument than to giving expert psychiatric testimony: [translation] Q. But why would he have done that, in your opinion? A. Well. So, if he wasn't psychotic and he wasn't excessively angry, what other possibilities are there?

I would submit that the most likely answer, in my opinion, is that he went to his grandfather's, maybe to help him, but also to ask his grandfather for things. In the days, months, in the preceding days, let's not forget that this was a guy without any fixed address, always scrounging for cash, he was without resources ... I mean stable, known, regular, sources of cash. So, he was in a bind, he was in a tight spot. So, I guess he might have looked for ... asked for things.

And maybe it was in that context that his grandfather refused and that things happened... that things went awry and ended with the death of the grandfather.

And afterwards, well this guy took things from his grandfather to make his own life a little better: the car obviously, maybe the money, and just like that he left. [ 39 ] Having failed to intercede, even ex officio , during the testimony of the expert Faucher to ask that this witness keep to his psychiatric expertise, the judge should have issued a specific warning to the jury to suggest that they not assign any weight to the expert's testimony as it related to his statements on the facts or on the appellant's credibility and that they rely solely on their own assessment of the evidence for these issues. [ 40 ] At trial, prior to the testimonies of psychiatrists Gagné and Legault, the judge explained to the jury how expert testimony should be treated.

He did so right after the testimony of two other experts, a biologist and a forensic pathologist. He made the following remarks: [translation] I want to remind you that the last two witnesses were also experts, and the same rule applies to them as it does to the others. You are completely free to accept their findings, their opinions, just as you are free to reject them. You can also accept them in part, or reject them in part. It is entirely up to you. You are masters of the facts, and this, here, their opinion, is a fact that depends entirely on the assessment you make of it and the weight you assign to it.

I will say it again, because all expert witnesses are people who state their opinion, which is based on facts, they will take facts for granted.

Their opinion is all the more... you can assign all the more weight to it if they assume the same facts that you assume. It will be all theweaker if their opinion is based on facts that you do not accept. [41] The judge kept to general warnings with respect to assessing the expert testimonies heard. Here are some excerpts ofwarnings given by the judge regarding the expert testimonies: [translation] ... ... They have given you their opinion on certain technical issues that you may take into account to decide this case.

Because of theirtraining, their schooling, and their experience, they are qualified to give an expert opinion. As I have mentioned repeatedly already, the testimony of the expert is no different from the testimony of any other witness. You do nothave to accept it just because it comes from an expert.

You can believe the expert's opinion completely, in part, or reject it completely.When you determine the value to assign to the opinion, you should take into account the expert's schooling, his training and experience,the basis for his opinion, the relevance of the methods used, and the other elements of evidence in this case. The decision is yours,entirely and exclusively. [42] Addressing the testimony of the experts Gagné and Faucher in particular, the judge explained the following to the jury: [translation] ...

As for experts Gagné and Faucher, they have opposing professional opinions in the present case, and it is also entirely up to you todecide the probative value that you will assign to these opinions. I repeat that only you can decide the value to assign to the experttestimony. And I will also repeat that the more similar the facts assumed by the expert are to the facts that you have accepted asevidence, the more the expert opinion may be of use to you. Conversely, the less similar the facts assumed by the expert are to the factsaccepted as evidence, the less the expert opinion may be of use to you. ...

As I pointed out, the more the facts which the experts take for granted correspond to those you accept as evidence, the more the opinionmay be useful to you. Conversely, the less these facts correspond to the facts that you accept as evidence, the more the probative valuemay be adversely affected. [43] These general warnings were insufficient in the present case. Generally, an expert may not testify to issues that do not fallwithin his or her area of expertise.

Because the testimony of the expert Faucher exceeded his task, however, because it veered away fromthe medical and scientific objectives of his opinion and ran the risk of causing the appellant harm, the judge should have issued aspecific warning to avoid the jury being unduly influenced by his testimony on subjects that were beyond the proper limits of hispsychiatric expertise. The expert made abundant remarks relating to the evidence and questioned the credibility of the accused'stestimony without regard for his area of expertise.

In such cases, instructions to the jury are necessary, as indicated by the SupremeCourt in R. v. Marquard:[4] Important as the initial qualification of an expert witness may be, it would be overly technical to reject expert evidence simply becausethe witness ventures an opinion beyond the area of expertise in which he or she has been qualified. As a practical matter, it is foropposing counsel to object if the witness goes beyond the proper limits of his or her expertise.

The objection to the witness's expertisemay be made at the stage of initial qualification, or during the witness's evidence if it becomes apparent that the witness is going beyondthe area in which he or she was qualified to give expert opinion. In the absence of objection, a technical failure to qualify a witness whoclearly has expertise in the area will not mean that the witness's evidence should be struck.

However, if the witness is not shown to havepossessed expertise to testify in the area, his or her evidence must be disregarded and the jury so instructed. [5] [Emphasis added.] [44] In that judgment, the Supreme Court confirmed that assessing credibility fell within the ambit of the judge or the jury (not theexpert witness), but that, in some instances, expert testimony may be admissible to explain human behaviour: A judge or jury who simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself determinethe credibility of the witness.

Credibility must always be the product of the judge or jury's view of the diverse ingredients it hasperceived at trial, combined with experience, logic and an intuitive sense of the matter: see R. v. B. (G.) (1988), (SKCA), 65 Sask. R. 134 (C.A.), at p. 149, per Wakeling J.A., affirmed (SCC), [1990] 2 S.C.R. 3. Credibility is a matterwithin the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a dailybasis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror.

Moreover, the expert's opinion may befounded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict. Finally,credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenientbasis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expertevidence on the truthfulness of witnesses.

On the other hand, there may be features of a witness's evidence which go beyond the ability of a lay person to understand, and hencewhich may justify expert evidence. This is particularly the case in the evidence of children. For example, the ordinary inference fromfailure to complain promptly about a sexual assault might be that the story is a fabricated afterthought, born of malice or some othercalculated stratagem. Expert evidence has been properly led to explain the reasons why young victims of sexual abuse often do notcomplain immediately.

Such evidence is helpful; indeed it may be essential to a just verdict. For this reason, there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible,

expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant tocredibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. ... Had Dr. Mian confined her comments to expert evidence explaining why children may lie to hospital staff about the cause of theirinjuries, there could have been no objection to her evidence. She was an expert in child behaviour, and the evidence would arguably havebeen evidence needed by a lay jury to understand fully the implications of the witness's change in story. However, Dr.

Mian went further.She clearly indicated that she personally did not believe the first story of the child, preferring the second version which the child told attrial. In so doing, she crossed the line between expert testimony on human behaviour and assessment of credibility of the witness herself.Moreover, the trial judge failed to instruct the jury that it was their duty to decide on the child's credibility without being undulyinfluenced by the expert evidence. In fact, the trial judge's statement that Dr.

Mian gave "evidence as an expert in child abuse andrelating to the truthfulness of the testimony of small children" actually reinforced the effect of the inadmissible evidence. In my view, this error, considered with the others, requires that a new trial be directed.[6] [Emphasis added.] [45] The Court, in Demers v. R.,[7] per Michel Proulx J.A., added that an expert may not usually testify to the credibility of theaccused who testified in his trial: [translation] But there is more. During his testimony, the expert repeatedly attacked the appellant's credibility as a witness to his defence.

Counsel forthe appellant objected but the judge dismissed the objections. Here are a few examples of this type of exchange. ... As this Court found in Roy v. R. (1988), (QC CA), 62 C.R. (3d) 127, and more recently in Gervais Fortin v. R. (25August 1997), Montreal 500-10-000297-927, (C.A.) (Proulx, Rousseau-Houle, and Zerbisias JJ.A.), it is irregular and highly prejudicialto an accused for experts to expressly state their opinion as to the credibility of the accused testifying in their defence. On this subject, Iwrote the following in Fortin: [translation] Already in 1988, in Roy v.

R. (1988) (QC CA), 62 C.R. (3d) 127, our Court had set aside the verdict of a jury on thegrounds that the prosecution's expert witness (incidentally the same expert) had exceeded the limits of expert testimony by expresslystating his opinion as to the credibility of the accused testifying in support of his defence based on intoxication and the absence ofspecific intent to murder. Since this, the Supreme Court of Canada, namely in R. v. Marquard, (SCC), [1993] 4 S.C.R. 223 and R. v.

Burns, (SCC), [1994] 1 S.C.R. 656, reiterated that criminal law does not allow expert testimony on the sincerity or credibility ofwitnesses: this issue must be determined by the jury. As stated by McLachlin J. in Marquard, credibility is a notoriously difficultproblem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve itsdifficulties. For these two reasons linked to the testimony of Dr.

Wolwertz, I also find that this error caused irreparable harm to the appellant and anew trial must be ordered.[8] [Emphasis added.] [46] While in certain circumstances, expert testimony may be admitted to explain the human behaviour displayed by the accused,such behaviour must in fact require the testimony of an expert.

That was not the case here. [47] To illustrate, one example in case law of an exceptional situation is the Supreme Court judgment in Lavallee,[9] where theaccused, a physically abused woman who killed her common law spouse late one night by hitting him on the back of the head as he wasleaving the room, argued self-defence. In that case, where the battered woman syndrome was raised, the expert evidence was useful toexplain the accused's behaviour, which might otherwise have seemed incomprehensible, to wit, she did not run away because she was tooscared of her spouse, not because she wasn't afraid of him.

This evidence was, in that particular context, deemed relevant and admissible. [48] But it is not the case here, where the expert argued, at times more than he testified, about something that a lay person couldunderstand. He thereby abandoned his role as expert, and his testimony in this respect required, at the very least, a specific warning toensure that the jury did not assign any weight to his testimony on the facts and on the credibility of the accused when they were whollyunrelated to his area of expertise.

It was up to the Crown, rather than its expert, to argue these issues stemming from the assessment ofthe evidence and the credibility of the appellant. [49] The judge should also have informed the jury that the particular case submitted by the expert turned on its own facts in lightof the absence of medical or scientific explanations to attest that this was in fact the behaviour observed in persons having committed acrime under the impetus of an unstable mental state at the time of its commission.

The instructions are silent on the matter however. [50] The judge specifically opened up the verdict of second degree murder. Proof of specific intent to cause the death of the victimwas therefore required.

In the absence of the judge interceding during the testimony of the expert Faucher or, at the very least, givingspecific instructions to counter the risk that the testimony of the expert be assigned a greater weight than it should, especially regardingthe facts (assessment of the evidence) and the credibility of the appellant, the fairness of the trial was seriously undermined andcompromised to the point where a new trial must be ordered.

The remedial measure cannot compensate for the prejudicial effects of asignificant portion of the testimony of the Crown's expert: the fairness of the trial was irremediably compromised.

The first ground of appeal: the judge's failure to warn the jury in his instructions regarding evidence of the appellant's post-offence conduct [51] The appellant criticizes the absence of a warning to the jury regarding evidence of the appellant's conduct after the tragedy.The respondent argues that, in the circumstances, a specific instruction relating to the post-offence conduct was not required. For theCrown, some of the elements to which the expert Faucher refers cannot be characterized as post-offence facts because they are closelylinked to the crime.

It adds that no specific instruction was required because the Crown only submitted the evidence in an effort tominimize the appellant's credibility, especially with respect to the extent of his mental disorder and intoxication, without howeverinciting the jurors to infer intent to kill from the appellant's post-offence conduct. [52] It is undisputed that a trial judge must give appropriate instructions to the jury regarding the post-offence conduct of anaccused to avoid the jury being led into error.[10] In R. v.

White,[11] the Supreme Court, per Major J., summarizes the applicableprinciples regarding post-offence conduct as follows: 23. Two legal doctrines have arisen in response to these concerns. As a preliminary matter, this Court held in Arcangioli that a juryshould not be permitted to consider evidence of post-offence conduct when the accused has admitted culpability for another offence andthe evidence cannot logically support an inference of guilt with respect to one crime rather than the other. That rule is essentially a matterof relevance and will usually apply in narrow circumstances.

More generally, this Court has also held that when evidence of post-offenceconduct is put to the jury, the jury should be “properly instructed” to ensure that the evidence is not misused: Arcangioli, at p. 143;Gudmondson v. The King (1933), (SCC), 60 C.C.C. 332 (S.C.C.), at pp. 332-33. ... 27. As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of theaccused is related to the crime before them rather than to some other culpable act.

It is also within the province of the jury to considerhow much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge tointerfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. Consequently, a “no probativevalue” instruction like the one required in Arcangioli will be called for only in limited circumstances. ... 36. ...

The purpose of such a charge is to counter the jury’s natural tendency to leap from evidence of flight or concealment to aconclusion of guilt, and to ensure that alternative explanations for the accused’s conduct are given full consideration. In particular, thetrial judge should remind the jury that people sometimes flee or lie for entirely innocent reasons, and that even if the accused wasmotivated by a feeling of guilt, that feeling might be attributable to some culpable act other than the offence for which the accused isbeing tried.

The jury should be instructed to keep these principles in mind when deciding how much weight, if any, to give suchevidence in the final evaluation of guilt or innocence. [12] [53] More recently, in R. v. Jaw,[13] LeBel J. has reiterated this rule: [39] ... While post-offence conduct cannot usually serve on its own as a basis for inferring the specific degree of culpability of anaccused person who has admitted committing an offence (R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129, at p. 145; R. v.Marinaro, (SCC), [1996] 1 S.C.R. 462; R. v.

Peavoy (1997), (ON CA), 34 O.R. (3d) 620 (C.A.), atp. 631), it can be used, more generally, to impugn the accused person’s credibility (R. v. White, (SCC), [1998] 2 S.C.R.72 at para. 26). [40] Post-offence conduct may also be used to discredit a defence that relates to the accused person’s state of mind at the time of theoffence and that is therefore relevant to his or her ability to form the requisite intent for the offence, such as intoxication (R. v.

Pharr,2007 ONCA 551, 227 O.A.C. 112, at paras. 8-15; Peavoy, at pp. 630-31) or the “not criminally responsible” defence under s. 16 (R. v.Jacquard, (SCC), [1997] 1 S.C.R. 314, at paras. 42-53). ...[14] [54] Had it not been for the fact that the expert Faucher referred repeatedly to the appellant's conduct after he left his grandfather'shome to draw conclusions as to his guilt, the judge's general instructions to the jury would have been sufficient.

However, a specificwarning was required here. [55] In his instructions, the judge repeatedly asked the jury to take into account the appellant's acts, including his conduct after thetragedy, to deduce his intention: [translation] Indeed, criminal intent is expressed and materializes in various ways ... It is therefore from the circumstances, the remarks, what isexchanged, what happens immediately before and immediately after, what happens a little later too, that you can deduce the person'sintent. And often from the act itself.

I therefore ask you to take into account the evidence of drug use and the evidence of the accused's conduct in the days and weekspreceding and following the events, as well as the testimony of the psychiatrists, to determine if, in light of all the circumstances, itwould be appropriate to make the acceptable deduction that the accused wanted the natural consequences of his acts. As I was saying earlier, you are not limited to the facts that precede or accompany the act, and you do not have to rely solely on thecommon sense inference.

You can take into account what was said and done after the act to deduce its author's intent. [Emphasis added.] [56] Several elements of the evidence regarding the appellant's post-offence conduct do not lead to a finding that he had thespecific intent to kill the victim. The post-offence facts established in evidence [translation] "... could be explained by a guilty consciencerelating to either the crime of manslaughter or that of second degree murder".[15]

[ 57 ] The judge's instructions are insufficient, even incomplete. The fact, for example, that the telephone cord was cut, that the victim's body was dragged, and that the appellant ran could just as well be linked to the crime of manslaughter as to that of second degree murder, wherefore the need for specific instructions on the impact of the appellant's conduct after the tragedy.

Therefore, in informing the jurors as he did that they could take into account the post-offence facts, the judge had to highlight the necessary distinctions as to the usefulness of the evidence of the post-offence facts (not guilt related) in conjunction with the need for establishing specific intent for second degree murder. [ 58 ] The judge's instructions to the jury included shortcomings in this respect, which cannot be remedied by calling on the remedial provision of subparagraph 686(1)( b )( iii ) Cr.

C. [ 59 ] The insufficient instructions regarding the use that the jury could make of the facts and acts of the accused after the tragedy in conjunction with the absence of specific instructions regarding the testimony of the expert Faucher when he testified on the facts and gave his assessment of the evidence and of the credibility of the appellant were not so innocuous or negligible that they could not have had an impact on the verdict. [16] [ 60 ] In light of the finding that a new trial must be ordered, it is unnecessary to consider the other grounds of appeal raised by the appellant.

CONCLUSIONS [ 61 ] For the reasons related to the failure to warn the jury regarding evidence of the appellant's post-offence conduct and the absence of specific instructions to compensate for the testimony of the expert on the facts and on the credibility of the appellant, I find that these errors caused irreparable harm to the appellant and that a new trial should be ordered. JACQUES DUFRESNE, J.A. [5] Ibid.