I don’t know about you, but when I’m relying on a professional for a service, I like to think they know as much as possible about whatever service they are providing. I want the young man who manages my RRSP to be up-to-date in his knowledge about interest rates and what’s happening in the financial markets. I want the mechanic who services my car to know as much as possible about how cars work. If I need medical attention, I want to receive it from someone who participates in ongoing education and training and has experience dealing with whatever my medical issue is.
And, if I am involved in a legal situation that winds up in front of a judge, I want the judge to know a lot about whatever they are making a ruling about. This means judges should engage in regular professional development activities. But, because judges hear cases covering an extremely wide range of issues, even with lots of education they will never be able to know everything they need to about every case that comes into their courtroom.
Enter expert witnesses, who are regularly used in criminal, civil and family law cases. The guilt or innocence of a driver involved in a car accident hinges on the road conditions at the time? The prosecution or the defence – or both – might call on an expert in road surfaces and weather conditions to provide helpful information to the court. A divorcing couple disagree about the value of their assets on the date of their marriage? A forensic accountant could be called to provide expertise on this question. And so on.
The generally accepted definition of an expert witness in the legal context is that they possess special knowledge and experience that goes beyond that of the judge or jury. This seems straightforward enough, but it rapidly gets snarled up in cases of gender-based violence, especially sexual violence.
Lingering myths
Myths about sexual violence continue to lurk about in the criminal system and in the minds of the players in that system. She asked for it by dressing like that; she shouldn’t have had so much to drink; she’s making it up to get back at him for breaking up with her; if he really had assaulted her, she never would have spoken to him again; she could have left if she wanted to; she’s a sex worker, so she can’t be sexually assaulted.
Judges and juries are not immune from believing these myths. That’s why they need to hear from experts about the impacts of trauma and why survivors behave as they do, which is sometimes different from what a judge or jury member thinks is how they should behave.
Think back to the trial of Jian Ghomeshi, who was acquitted of multiple sexual assault charges in 2016. One of the key issues in the case was that the women Ghomeshi was accused of sexually assaulting had remained in contact with him after the incidents that led to the charges. The prosecution did not call an expert witness to explain the trauma that is a reality for many survivors of gender-based violence or the fear that lasts long after a sexual assault, leading the survivor to “make nice” with the person who has harmed her. We’ll never know whether such evidence would have changed the outcome of the trial, but the lack of it meant the judge did not have important information to consider when making his decision.
And still today . . .
Fast forward to a more recent high-profile sexual assault case; that of Hedley lead singer Jacob Hoggard, who was convicted of sexual assault causing bodily harm in 2022. At the trial, the first witness called by the prosecution was clinical psychologist Dr. Lori Haskell. She testified, as an expert, about the neurobiology of trauma to help the jury understand the judge’s instructions not to use rape myths and to understand that there is no one way a “real” victim of sexual assault reacts.
Hoggard’s lawyer appealed the conviction, largely on the basis that Haskell’s evidence was “prejudicial, unnecessary, misused by the jury and should never have been admitted in the first place by the trial judge.” The appeal was heard by the Ontario Court of Appeal in June, but no ruling has yet been released.
If the defence’s appeal is successful, Hoggard’s conviction will be overturned and there will be a retrial. Presumably, the judge will not have the benefit of expert evidence at that trial.
But a successful appeal by Hoggard could have bigger implications. If expert evidence is considered unnecessary and prejudicial in one sexual assault trial, the same could be true in others. That means the conviction of Peter Nygard on four counts of sexual assault could be in jeopardy because Dr. Haskell – who is internationally renowned for her expertise on trauma and gendered violence – was an expert witness in his trial.
For as long as rape myths occupy the minds of police, prosecutors, jurors, judges and defence lawyers, we will continue to need expert witnesses. I hope the Court of Appeal in the Hoggard case sees it that way.