Expert Opinion

PTSD

McEachern

• Para. 40 video store incident “zoned out” speaking of bombs and grenades

• Para. 41 yelling about war in Jasper, later under a tree crying

• Para. 42 bathroom incident, tearful, drooling incoherent, not conscious in any meaningful way

• Para. 43 if a conflict arose, he would stomp off and drive away

• Para. 44 generally did not drink much alcohol• Concerned over medals• Readings: 110

McEachern

• Friends killed, listening to a woman being sexually assaulted with orders not to assist, dead child being pecked at by bird

• PTSD diagnosis• Night sweats, nightmares• Conflict in home• Feeling trapped in the home and driving away, finding

himself on the edge of the City, with little to no memory of the drive

• Various feelings about the medal issued to him, told that day he was not entitled to holdiays, as he was already on holidays (medical leave?)

McEachern

• Looking at medals, feelings of despair

• Depressed, sad, humiliated

DSM IV

• Person must experience traumatic event (actual or threatened death, serious injury) where reaction is one of helplessness, horror or intense fear.

• The traumatic event(s) must also be re-experienced in one/some of the following ways: recurrent memories and nightmares; psychological and physiological responses; persistent avoidance of stimuli associated with trauma; numbing of general responsiveness.

• Finally, clinically significant stress in social, occupational or other important areas of functioning.

McEachern: problem? Form/content of question?

• [75] Dr. Passey asked a hypothetical by defence which did not include certain statements of accused and was asked to assume McEachern had no memory of the night in question.

• [81] Dr. “assumes” a rush of traumatic memories as medals are being viewed (Crown: contrary to evidence [88])

McEachern: Difference – Contrary Expert Opinion Boddam

• Person in described state not an automaton• [98] more detailed hypothetical given to Boddam

by Crown• [99] defence hypothetical referred to statements

by accused that were “not contextual”• Difference in alcohol consumption• Expert conclusion: intoxicated individual with

suicidal thoughts, distraught and drove intentionally into the building

Weight Issues McEachern

• [109] admission by Boddam he never requested or reviewed personell or medical files

• [111] admission by Boddam that medals may have triggered a dissociative state in McEachern

Trila Judge: McEachern

• Acceptance of PTSD diagnosis in general and some of the past behaviors as a result: see [113]

• [146] despite Passey treating McEachern, neither expert in a better position to give expert evidence on PTSD and this accused ???? ) (S.C.C. in Stone: plausible v. medical opinion about accused, one based on prior medical history)

• [147] reason to prefer one expert over other, assumption made by Passey as to “flood of traumatic memories” at kitchen table – trial judge: no evidence this was the case, McEachern didn’t so testify – therefore, less weight, as some of doctor’s conclusions relied thereon

Trial Judge: McEachern

• [148] Passey did not account for evidence of third parties as to awareness of surroundings – non-linear statements?

• [153] lack of memory: not necessarily an indication of dissociation

• [154] prefers Boddam’s explanation of role of intoxication (but given evidence of Passey in both cases, is the intoxication really voluntary?)

Trial Judge: McEachern

• [155] Passey provided no specific opinion as to whether the actions were “voluntary”; Boddam: capable of voluntary thought and action, although conceded it would be in relation to the perception of being in the original traumatic event

• [156] no dissociative flashback• [157] automaton cannot respond to his

environment• [158] Passey: no description of automatism nor

opinion as to accused and automatism at time

Trial Judge: McEachern

[160] Passey did not explain why this was a case of dissociative but not voluntary action. Boddam concluded the actions were voluntary based on an analysis of the evidence of those who saw and dealt with the accused. Trial judge: Boddam’s is the correct approach, as “voluntariness” is key to the defence.

Practice Points

• Make sure your hypotheticals are complete.

• Provide alternatives depending on what facts might be found by the TOF.

Practice Points

• Relate your questions to the substantive requirements of the law: ie. are these actions “voluntary” as opposed to stopping at “dissociation.”

• Deal with problems in evidence – have your expert comment whether they are significant to the opinion – ie. presence of otherwise normal behavior by a person in a dissociative state (ie. can’t one be responsive to one’s environment and be acting involuntarily)?

Trial Judge: McEachern

• [165] Triggering stimuli not of a shocking or severe nature.

• [166] [In Passey’s evidence] there were no similarities drawn between the nature and severity of the previous episodes of dissociation and the behavior at the time of the offences.

Trial Judge: McEachern

• [167] The most significant evidence in this case is the evidence of the witnesses who observed McEachern from 5:00 a.m. March 15, 2001 onward. I have found … [McEachern] was responsive to his environment. He made statements which I consider appropriate to the situation he found himself in. This is a time in which Dr. Passey considered McEachern to be both both in a dissociative state, and a state of automatism.

MacInnis

• [105] Passey: “… these people may actually dissociate, and by that I mean that the emotional component gets locked off in the closet, and so they may actually have almost like a poker face, even though they are very anxious or very angry. So just by looking at them, you may not see anything.”

MacInnis

• [109] Passey: “A person can be dissociated and carry on a normal conversation and go about normal sorts of things.”

Trial Judge: McEachern

• [190] No triggers of a shocking nature

• [191] Cannot say that these would not be the normal reaction of a similarly situated person, these are the “ordinary disappointments and stressors of life” [query: why not incorporate this into question?]

• Would have found it to be mental disorder automatism, if anything at all (an internal cause and continuing danger)

Practice Points

• In choosing a defence, keep an open mind.

• Find your expert, obtain an opinion, understand what it is based on, and make sure each and every fact needed has an evidential basis.

Practice Points

• Make sure to make clear to the TOL and TOF in your questioning what is and is not important to the opinion – ie. even if something particular is not proven, the opinion remains the same.

• Remember to explain away (or as not significant) what may seem to you evidence that could be misused by the TOL/TOF.

Practice Points

• Don’t get so wrapped up in the “expertise” so as to forget your goal. E.g. why are questions directed towards the “continuing danger” of MacInnis? Why is question asked: “does that mean all PTSD sufferers are involuntary actors whose actions should be excused?”

• Use a documentary guide (such as the DSM IV) as an assist to the TOF/TOL, but more importantly, to guide your questions – first laying out the individual criteria, then asking questions to determine whether it is met, then asking questions putting that expert criteria in terms relevant to the case at bar (would leaving the house and driving around be “voluntary?” what about taking a drink?).

Practice Points

• Understand the differential diagnoses, and the alternative explanations for the facts in issue in the case at bar, and have expert talk about how those were considered and why they were set aside, and why his/her opinion is the most likely explanation (ie. did you consider whether he was “malingering” – taken as a differential diagnosis right out of DSM IV).

Practice Points

• Become an expert in the terminology of the discipline.

• Remember that expertise demonstrated in court is not cumulative. Each case bears its own requirements for proof of facts, expertise and expert opinion. Decisions in similar cases are relevant to approach, but not to proof of the facts or opinion therein. Case in point: automatons and their reactions to their environment.