R. v. HOGGARD, 2024 ONCA 613, AUGUST 16, 2024.

FACTS: The accused was convicted of the offences of sexual assault.  At the trial, the Crown presented expert evidence about “the neuroscience of responses to traumatic events”.  The evidence at the trial suggested that the complainant (JB) had numerous opportunities to get away or call for help during the alleged assault. The trial judge determined expert evidence was necessary to explain the neurobiology of trauma and the broad spectrum of responses to sexual assault”.

The Court of Appeal summarized the evidence provided by the expert in the following manner (at paragraph 18):

[The expert] testified that when a person is exposed to a threatening event that induces fear, extreme stress or perceived inescapability, the defence circuitry within the brain and the body is automatically activated. The brain is flooded with stress chemicals which can impair the function of the prefrontal cortex and cause habit behaviours and reflexes to be enhanced. She opined that, when faced with a traumatic experience, “most people who can’t run or fight are going to do more avoidant habits,” including denial, appeasement, de-escalation, and acquiescence.

HELD:  The Court of Appeal concluded that the trial judge erred in admitting the expert evidence, but affirmed the conviction.

The Court of Appeal held that the “concept that there is no standard way for a complainant to act in response to a sexual assault is well-entrenched in the law…Akin to the delayed disclosure considered in D.D. over twenty years ago, there is no basis to refute the ‘undeniable nature of the proposition’: at para. 66. Expert testimony is not necessary to explain this law to the jury. A jury instruction ‘would have effectively dispelled the possibility that the jury might engage in stereotypical reasoning, [and] it was not necessary to inject the dangers of expert evidence into the trial’” (at paragraph 32).

However, the Court of Appeal concluded that the conviction should be affirmed because “no substantial wrong or miscarriage of justice occurred with respect to the charges involving J.B. and the curative proviso should be applied” (at paragraph 74).