R v Orr: Expert Evidence and “Soft” Science at the BC Court of Appeal
In R v Orr, 2015 BCCA 88 [Orr, BCCA], the Court of Appeal for British Columbia (“BCCA”) set aside the convictions of Mr. Franco Yiu Kwan Orr, who was charged with three violations of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Although ultimately decided on narrow evidentiary grounds, the case raises interesting questions about the limits of the fair minded jury and law’s interaction with other epistemologies or “ways of knowing.”
Facts and Findings at First Instance
In June 2010, police were called to the family home of Mr. Orr and his wife, Ms. Huen. The call was placed by the complainant, the family’s live-in caregiver, following a quarrel with Ms. Huen. During the subsequent investigation, the complainant (whose name is protected by a publication ban) stated that while employed by the family in Hong Kong, she had agreed come to Canada with them in September of 2009, relying on Mr. Orr’s representations that he would continue to employ her in her current role, and that, after the requisite two years, he would assist her in becoming a permanent resident of Canada. (R v Orr, 2013 BCSC 1883, para 13 [Orr, BCSC]). She alleged that since arriving in Canada, her work had increased up to sixteen hours a day and that she was being paid less than what was required by British Columbia law.
Mr. Orr was tried by jury convicted of three counts of breaching the IRPA. These counts were set out succinctly in the first paragraph of Orr, BCCA as follows:
Count 1: Knowingly organizing the coming into Canada of [the complainant], by means of abduction, fraud, deception or use of the threat of force or coercion, contrary to section 118(1) of the Act;
Count 2: Employing a foreign national, [the complainant], in a capacity to which she was not authorized to be employed, contrary to subsection 124(1)(c) of the Act; and
Count 3: Misrepresenting or withholding material facts relating to a relevant matter that induced or could induce an error in the administration of the Act by providing false information to the Consulate General of Canada in support of the application for temporary resident visa for entry to Canada for [the complainant], contrary to section 127(a) of the Act.
A central issue at trial was the extent to which the complainant’s silence — her failure to bring her circumstances to the attention of others — affected her credibility. The expert evidence adduced on this point would eventually become the core of Mr. Orr’s appeal.
At a voir dire commencing on the eleventh day of trial, the Crown sought to qualify Mr. Dandurand, a criminologist, as an expert witness in criminology and transnational crime who could provide evidence in relation to methods of human trafficking and exploitation. The trial judge, Justice Goepel, found Mr. Dandurand’s proposed evidence on human trafficking both unrelated to the charges and too prejudicial to the accused to warrant admission. However, he did find that Mr. Dandurand could be qualified as an expert in “victimology,” the study of how victims react to the situations they face. As such, Mr. Dandurand was permitted to provide an opinion in response to a properly framed hypothetical question on the issue of victim silence (Orr, BCCA, paras 31-32).
The hypothetical, which closely resembled the facts of the matter at hand, was drafted, approved, and utilized during Mr. Dandurand’s examination in chief. Justice Goepel’s charge the jury reflected Mr. Dandurand’s opinion that a victim may remain silent for many reasons, including the effects of a hypothetical controlling relationship.
Following the jury’s return of the three convictions, Justice Goepel sentenced Mr. Orr to a global sentence of eighteen months. Mr. Orr appealed the convictions.
Issues and Arguments at the Court of Appeal
Mr. Orr appealed on several grounds, including the admission of Mr. Dandurand’s evidence (Orr, BCCA, para 46), the content of the trial judge’s jury instructions on Count 2 (para 54), and an assertion that the convictions of Mr. Orr are inconsistent with the jury’s acquittal of Ms. Huen on the same charges (para 59).
For brevity’s sake, our focus is the central and dispositive issue of whether the trial judge erred in allowing Mr. Dandurand to testify as an expert in victimology?
Counsel for Mr. Orr argued that the trial judge’s finding that Mr. Dandurand was a qualified expert included three errors. The first was that the trial judge employed a flawed qualification procedure of a “haphazard” nature, rather than the mandated test from R v Abbey, 2009 ONCA 624 [Abbey]. Second, the appellant argued that the testimony was not necessary, as the jury had all it needed from their own knowledge and experience to make the appropriate inferences. Finally, the appellant argued that the hypothetical scenario, by virtue of how closely it resembled the complainant’s evidence, amounted to oath-helping (paras 47-51).
The Crown, in reply to the first two arguments, asserted that the accused did not contest the expert’s qualification as a “victimologist” at the voir dire, that Mr. Dandurand was qualified, and that it was open to the trial judge to find that the evidence was necessary. In reply to the suggestion of oath-helping, the Crown stated that the jury understood that no weight should be put on the expert opinion if the underlying facts were not proven, and as such, it was open to them to not believe the expert (paras 50-52).
Reasons of the Court of Appeal
Justice Willcock, writing for a unanimous court, found that the trial judge erred in admitting the opinion evidence of Mr. Dandurand. Tacitly agreeing with the appellant’s first contention, Justice Willcock affirmed that the relevant jurisprudence has established that the two-stage test in Abbey operates to determine the admissibility of expert opinion evidence (paras 62-63). He then applied the test.
The first stage of the Abbey test ensures that the threshold preconditions for admissibility are met by asking whether:
a) the proposed opinion relates to a subject matter that is properly the subject of expert opinion evidence
b) the witness is qualified to give the opinion;
c) the proposed opinion runs afoul of any exclusionary rule apart entirely from the expert opinion rule; and
d) the proposed opinion is logically relevant to a material issue.
The second step of the Abbey test, sometimes referred to as the “gatekeeping” function, involves the exercise of judicial discretion to determine whether the benefits of the expert evidence outweigh its costs. The benefits depend on the probative value of the evidence, the significance of the issue to which the evidence is relevant, as well as the methodology, expertise, and objectivity of the evidence (Abbey, para 87). The costs depend on the extent to which admission will consume time, prejudice the reasoning of the jury, or even confuse the jury (Abbey, para 90).
Stage 1: Threshold Preconditions
Justice Willcock found that the evidence did not meet the second threshold criterion; that is, he found that Mr. Dandurand was not qualified to give the opinion adduced at trial (Orr, BCCA, para 67). He held this for two reasons. First, Justice Willcock made the somewhat unsubstantiated and general point that courts should be wary of accepting experts in behavioural sciences — the implication here perhaps being that that behavioural science evidence requires higher scrutiny (para 67). Indeed, Justice Willcock quoted Justice Doherty’s caution in Abbey that the testimony of experts in behavioural or “soft” sciences is not amenable to the criteria for weighing scientific evidence, and thus, that a different set of qualifying questions must be asked (para 78).
The second, more forceful point is that during the voir dire, Mr. Dandurand’s qualifications as a victimologist were not subject to examination. The trial judge, after finding his evidence on human trafficking inadmissible, held that Mr. Dandurand could, however, speak to a victim’s reasons for silence. As Justice Willcock noted, objections to the admissibility of his opinion on this matter were limited. This lack of examination resulted in very little evidence to substantiate his qualification and little evidence to support the probative value of his opinion (para 68).
For these reasons, the BCCA found that Mr. Danduran’s evidence failed the first stage of the Abbey test.
Stage 2: Cost-Benefit Analysis
Notwithstanding the failure to meet the preconditions, Justice Willcock also found that the probative value of Mr. Dandurand’s evidence was insufficient to outweigh its potential for prejudice (para 70). Again, his finding was grounded in two reasons, both of which are grounded in the subject matter of the evidence itself.
First, Justice Willcock echoed his earlier concerns about behavioural evidence, writing that “[e]vidence explaining motives and behaviour is difficult to verify or refute by scientific means. For that reason, it may be very prejudicial” (para 72). This point is later made more forcefully.
The second reason was Justice Willcock’s scepticism about the extent to which the expert evidence was, in fact, necessary. In his view, the kind of evidence provided by Mr. Dundurand added little, if anything to the resources of the jury’s experiences. This view is in keeping with the generally generous opinion courts have of a jury’s knowledge of human interaction and motivation. At paragraph 73, he writes:
There is a serious question whether expert opinion was necessary in this case. There is persuasive authority for the proposition that ordinary, fair-minded members of Canadian juries are capable of weighing common motivations and basic human emotions such as fear of reprisal and dependence arising from poverty and vulnerability. Expert opinion evidence is not ordinarily necessary to respond to attacks upon the credibility of witnesses founded in their late disclosure of abuse.
Justice Willcock provided several examples of cases of delayed disclosure of abuse in which the jury’s resources alone were found sufficient for fact finding. These include R v DD,  2 SCR 275, a sexual assault case, and R v Osmar, 2007 ONCA 50, a case in which a false confession was procured.
Strictly speaking, this second point — Justice Willcock’s scepticism about the necessity of the evidence — should be considered obiter, having already found at the first stage of the Abbey test that Mr. Dandurand was not qualified to provide the evidence. Indeed, Justice Willcock, after rehearsing the sceptical point, noted that while he may have not found the evidence necessary, he would not interfere with the trial judge’s “judgment call” on whether the opinion was likely to assist to the jury, as “[i]t seems to me that it is a decision with which an appellate court should be very reluctant to interfere” (para 77). Instead, he rested his conclusion of inadmissibility on the first stage (para 78).
Justice Willcock concluded that there was an inadequate evidentiary foundation for the admission of Mr. Dandurland’s opinion and for the exercise of discretion to allow him to testify to a critical component of the complainant’s credibility (para 87).
It is difficult to find fault with the Court of Appeal’s rejection of Mr. Dandurand’s evidence, to the extent that this rejection is grounded in the lack of examination it underwent in voir dire. The potential prejudice of untested opinion evidence, which a jury may simply adopt, in the face of little probative value, makes that determination straightforward.
One may, however, have some residual concerns about one portion of the Court of Appeal’s obiter. Recall that animating Justice Willcock’s scepticism about the necessity of the evidence was an assumption that the jury possessed suitable resources to make judgments about fear of reprisal and vulnerability. To show the jurisprudence’s support of this assumption, he included several cases in which delayed disclosure of abuse was intelligible without expert evidence.
It is here, faced with the varied content of these cases, that one might to wonder about endorsing the general assumption. That is, one might point out the (strong) possibility the experiences of sexual assault, the inducement of a false confession, or in this case, exploitation, each carry their own unique and terrible qualities which a fair-minded juror’s experience may not even begin to grasp. Once this is recognized, it seems somewhat worrisome to paint each of these different factual scenarios with the same brush of intelligibility.