Expert Evidence of the Accused’s Disposition

The admissibility of psychiatric opinion evidence on the accused’s disposition engages at least two inquires:

·         The admissibility of the evidence as expert opinion evidence,

·         The admissibility of the evidence as character evidence.

The Admissibility of  Expert Opinion Evidence

 Opinion evidence, including expert opinion evidence, is presumptively inadmissible.
R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 71, leave to appeal refused, [2010] S.C.C.A. No. 125.  

To be admissible, expert opinion evidence must satisfy certain preconditions to admissibility and also survive a cost/benefit analysis by the trial judge.  At this second stage, the trial judge decides whether having regard to the risks inherent in admitting expert evidence, the benefits to the fact-finding process in the specific case warrant the admission of that evidence:

White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24; and Abbey, at paras. 76-79. 

The Admissibility of Psychiatric Evidence of the Accused’s Disposition (Character Evidence)

Psychiatric opinion evidence which goes to an accused’s disposition and which is brought on behalf of the defence is admissible in limited circumstances. 

In the leading case of R. v. Robertson (1975), 21 C.C.C. (2d) 385 (Ont. C.A.), Martin J.A. wrote at pp. 429-30:

In my view, psychiatric evidence with respect to disposition or its absence is admissible on behalf of the defence, if relevant to an issue in the case, where the disposition in question constitutes a characteristic feature of an abnormal group falling within the range of study of the psychiatrist, and from whom the jury can, therefore, receive appreciable assistance with respect to a matter outside the knowledge of persons who have not made a special study of the subject.  A mere disposition for violence, however, is not so uncommon as to constitute a feature characteristic of an abnormal group falling within the special field of study of the psychiatrist and permitting psychiatric evidence to be given of the absence of such disposition in the accused.  [Italics in original; underlining added.]

 The limited basis for admitting expert evidence of disposition articulated in Robertson has been repeatedly applied in the Supreme Court of Canada: 

See R. v. McMillan, [1977] 2 S.C.R. 824; R. v. Mohan, [1994] 2 S.C.R. 9; and R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600. 

In Mohan, at p. 37, Sopinka J. explained:

Before an expert’s opinion is admitted as evidence, the trial judge must be satisfied, as a matter of law, 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 the opinion of the expert and 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. [Emphasis mine].

Being under stress, depressed, anxious, and distrustful, are feelings that fall within the normal range of human emotions, and do not, without more, place the accused within any “distinctive group” from a psychiatric point of view. 

See R. v. Suarez-Noa, 2017 ONCA 627.

Stuart O'Connell, O'Connell Law Group, www.leadersinlaw.ca


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