Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 4, 2019 11 www.lawtimesnews.com BY MEAGAN GILLMORE For Law Times T he Ontario Court of Appeal has ordered a new trial in a sexual assault case, after ruling a participant expert's tes- timony at the trial was inadmis- sible. The province's highest court released its decision in the Ime- son v. Maryvale (Maryvale Family and Adolescent Ser- vices) on Nov. 7. "This appeal, which concerns the treatment of participant ex- pert evidence at trial by a trial judge at a civil jury trial, illus- trates the importance of scruti- nizing such evidence to ensure that the participant expert does not exceed his or her proper role," wrote Justice Katherine van Rensburg, for the three- judge panel that included jus- tices Gloria Epstein and David Brown, in the opening para- graph of the 33-page decision. In 2016, Maryvale Adoles- cent and Family Services, a home for troubled youth, was found vicariously liable for the sexual assault of a former em- ployee, known as Tony "Doe" on Jesse Imeson, who stayed at Maryvale for a few months dur- ing 1996 and 1997. An impor- tant witness in the trial was Dr. Kerry Smith, a psychologist who treated Imeson for nearly three years between 2012 and 2015 when Imeson chose to discon- tinue sessions, the decision says. In 2008, Imeson was convict- ed of three second-degree mur- ders, for which he is currently serving three life sentences in a federal penitentiary, the decision says. He first made allegations about sexual assault committed by Tony "Doe" in 2009 or early 2010. Litigation began in 2011. The trial, which included a jury, occurred in September 2016. The decision details how Su- perior Court Justice Elizabeth M. Stewart permitted Smith, a psychologist at the penitentiary where Imeson is serving his sentence, to testify as a partici- pant expert about the treatment he had provided to Imeson and the treatment he would have given if Imeson had continued the sessions. The trial judge did not allow Smith to give opinions about whether Imeson would be released, if he fit the charac- teristics of childhood sexual as- sault survivors or if he "matched the characteristics that preda- tory sex offenders seek out," the Court of Appeal's decision says. Smith "had conducted no re- search in the field of childhood sexual assault and abuse," the decision says, although it also says that many of his patients report experiencing childhood sexual abuse. The decision describes de- fence counsel's objections to Smith being a participant expert witness on the basis that his tes- timony was not necessary and that he did not meet the proper criteria to be a participant expert witness. The Court of Appeal agreed. "There was no need for expert evidence to help the jury decide whether Imeson was credible," wrote van Rensburg. Stephen Ross, a partner at Rogers Partners LLP in Toronto, who represented Maryvale, says the decision is "generally con- sistent" with the reasons he gave questioning the use of Smith as a participant expert and his re- ports. Smith's evidence was unnec- essary, he says. "Expert evidence is supposed to assist in letting the trier of fact understand a complicated issue, one that's technical in nature, beyond the understanding of a layman," Ross says. "Our courts have recognized that a credibil- ity assessment is not that. A jury and a judge don't need help in deciding which of two parties is telling the truth." Loretta Merritt, a lawyer at Torkin Manes LLP in Toronto, represented Imeson. She de- clined to comment for this ar- ticle. However, she has filed leave to appeal to the Supreme Court of Canada. The court has not decided if it will hear the appeal. The court ruled that Smith did not meet the criteria for par- ticipant experts. Participant ex- perts, unlike litigation experts, don't need to complete a form before trial detailing their ex- pertise, their opinions and the reasons for their opinions. In 2015, the Ontario Court of Ap- peal ruled in Westerhof v. Gee Estate that a participant expert must only give evidence based on their observation of and par- ticipation in the events at ques- tion and that those opinions are to be formed in the "ordinary ex- ercise of his or her's skill, knowl- edge, training and experience while observing or participat- ing in such events," the Imeson decision says. The decision later says these opinions are typically found in a treating clinician's notes or records or in reports prepared for consultation or treatment. Smith's evidence at the 2016 trial went beyond those limits, the court said. According to the decision, Smith testified about common characteristics of childhood sexual assault survi- vors and that the abuse he alleges to have suffered contributed to the murders he later committed. "Any opinion offered by Dr. Smith that sought to draw a causal link between the alleged sexual assaults and Mr. Imeson's later behaviour could not have been based on his skill, knowl- edge, training and experience while he was involved in Mr. Imeson's treatment," the deci- sion says. In the court's view, Smith lacked the expertise to make that connection. "The fact that Dr. Smith un- derstood that many of his pa- Stephen Ross says 'expert evidence is supposed to assist in letting the trier of fact understand a complicated issue.' Inadmissible evidence could lead to new trial FOCUS See Trial, page 12 What do your clients need? The means to move on. 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