R. v. Mohan (1994), 71 O.A.C. 241 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty The Queen (appellant) v. Chikmaglur Mohan (respondent)
(23063)
Indexed As: R. v. Mohan
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
May 5, 1994.
Summary:
The accused pediatrician was charged with four counts of sexual assault involving four of his female patients aged 13 to 16. The accused’s counsel indicated that he intended to call a psychiatrist who would testify that the perpetrator of the alleged offences was part of a limited and unusual group of individuals and that the accused did not possess the characteristics of that group. Following a voir dire, the trial judge ruled that the evidence was not admissible. The jury convicted the accused. He was sentenced to nine months’ imprisonment on each count (concurrent) and two years’ probation. The accused appealed his conviction and the Crown appealed the sentence.
The Ontario Court of Appeal, in a decision reported at 55 O.A.C. 309, held that the psychiatrist’s evidence was admissible. The court allowed the accused’s appeal and ordered a new trial. The Crown appealed.
The Supreme Court of Canada allowed the appeal, restored the convictions and remitted the matter to the Court of Appeal for disposition of the sentence appeal.
Criminal Law – Topic 686
Sexual offences – Evidence – General – [See first
Criminal Law – Topic 5204.3
].
Criminal Law – Topic 5204.3
Evidence and witnesses – Admissibility of evidence of disposition or propensity of accused – The accused pediatrician was charged with four counts of sexual assault involving four young female patients – The accused sought to call a psychiatrist who would testify that the perpetrator of the alleged offences was part of a limited and unusual group of individuals and that the accused did not possess the characteristics of that group – The trial judge ruled that the evidence was not admissible, finding that a person who committed sexual assaults on young women did not belong to a group possessing behavioral characteristics that were sufficiently distinctive to be of assistance in identifying the perpetrator of the alleged offences – The Supreme Court of Canada affirmed the trial judge’s decision.
Criminal Law – Topic 5204.3
Evidence and witnesses – Admissibility of evidence of disposition or propensity of accused – The Supreme Court of Canada considered the issue of when expert evidence would be admissible to show that character traits of an accused person did not fit the psychological profile of the putative perpetrator of the offences charged – Resolution of the issue involved an examination of the rules relating to character evidence, having regard to the restrictions imposed by the criteria respecting expert evidence – See paragraphs 16 to 45.
Criminal Law – Topic 5204.3
Evidence and witnesses – Admissibility of evidence of disposition or propensity of accused – The Supreme Court of Canada stated that “[b]efore an expert’s opinion is admitted as evidence, the trial judge must be satisfied … that either the perpetrator of the crime or the accused has distinctive behavioural characteristics such that a comparison of one with the other will be of material assistance in determining innocence or guilt … The trial judge should consider … whether the expert is merely expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group. Put another way: Has the scientific community developed a standard profile for the offender who commits this type of crime?” – See paragraph 45.
Criminal Law – Topic 5449
Evidence and witnesses – Testimony respecting the accused – Character of accused – [See all
Criminal Law – Topic 5204.3
].
Evidence – Topic 7000
Opinion evidence – Expert evidence – General – The Supreme Court of Canada stated that admission of expert evidence depended on the application of the following criteria: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert – See paragraph 17.
Evidence – Topic 7053
Opinion evidence – Expert evidence – Particular matters – Psychiatric evidence – [See all
Criminal Law – Topic 5204.3
].
Cases Noticed:
R. v. Lupien, [1970] S.C.R. 263, consd. [para. 11].
R. v. Robertson (1975), 21 C.C.C.(2d) 385 (Ont. C.A.), consd. [para. 11].
R. v. McMillan (1975), 23 C.C.C.(2d) 160 (Ont. C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, consd. [para. 11].
R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 11].
R. v. French (1977), 37 C.C.C.(2d) 201 (Ont. C.A.), refd to. [para. 11].
R. v. Taylor (1986), 18 O.A.C. 219; 31 C.C.C.(3d) 1 (C.A.), refd to. [para. 11].
R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385; 4 C.R.(4th) 1, refd to. [para. 13].
R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 14].
R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 138 D.L.R.(3d) 202; 68 C.C.C.(3d) 394; 29 C.R.(3d) 193, consd. [para. 14].
R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200; 77 C.R.(3d) 347, refd to. [para. 14].
R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 18].
R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 19].
R. v. Melaragni (1992), 73 C.C.C.(3d) 348 (Ont. Gen. Div.), consd. [para. 19].
R. v. Bourguignon, [1991] O.J. No. 2670, consd. [para. 20].
R. v. Lafferty, [1993] N.W.T.J. No. 17, refd to. [para. 20].
Kelliher (Village) v. Smith, [1931] S.C.R. 672, consd. [para. 22].
R. v. Turner, [1975] Q.B. 834 (C.A.), consd. [para. 23].
Director of Public Prosecutions v. Jordan, [1977] A.C. 699 (H.L.), refd to. [para. 23].
R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 25].
R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, consd. [para. 26].
R. v. McNamara (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), leave to appeal refused, [1981] 1 S.C.R. xi; 37 N.R. 85, refd to. [para. 31].
R. v. Chard (Peter John) (1971), 56 Cr. App. R. 268 (C.A.), consd. [para. 32].
Lowery (Christopher Russell) v. R., [1974] A.C. 85 (P.C.), consd. [para. 33].
Thompson v. R., [1918] A.C. 221, consd. [para. 41].
R. v. Garfinkle (1992), 15 C.R.(4th) 254 (Que. C.A.), consd. [para. 42].
Authors and Works Noticed:
Beven, Thomas, Negligence in Law (4th Ed. 1928), p. 141 [para. 22].
Cross, Sir Rupert, Cross on Evidence (7th Ed. 1990), p. 492 [para. 34].
McCormick, Charles Tilford, McCormick on Evidence (3rd Ed. 1984), p. 544 [para. 18].
Mewitt, Alan W., Character as a Fact in Issue in Criminal Cases (1984-85), 27 Crim. L.Q. 29, pp. 35 to 36 [para. 39]; 36 [para. 44].
Pattenden, Rosemary, Conflicting Approaches to Psychiatric Evidence in Criminal Trials: England, Canada and Australia, [1986] Crim. L.R. 92, p. 100 [para. 40].
Rimm, David C. and John W. Sommerville, Abnormal Psychology (1977), pp. 31, 32 [para. 41].
Counsel:
Jamie C. Klukach, for the appellant;
Brian H. Greenspan and Sharon E. Lavine, for the respondent.
Solicitors of Record:
Ministry of the Attorney General, Toronto, Ontario, for the appellant;
Greenspan, Humphrey, Toronto, Ontario, for the respondent.
This case was heard on November 9, 1993, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On May 5, 1994, Sopinka, J., delivered the following judgment for the court in both official languages.
