The Court determined that expert evidence should be admitted from a psychologist on the issue of whether and how an Indigenous man’s severe language disorder might have affected his ability to understand and answer questions in an interview with the police. The expert is uniquely positioned and qualified to provide evidence regarding language disorders among Northern Indigenous persons like the accused.
The Accused, Mr. Soulier, is from South Indian Lake in northern Manitoba and is a member of the O-Pipon-Na-Piwin First Nations Band. This matter is a follow-up decision regarding the admissibility of expert evidence.The context is a voir dire to determine the voluntariness of the Accused’s police statement. The defence tendered an expert report and viva voce evidence of psychologist, Dr. Ducharme, on the issue of whether and how a severe language disorder might have affected Mr. Soulier’s ability to understand and answer questions in his interview with the police. It was previously determined that Dr. Ducharme’s proposed evidence was logically relevant to the issue of voluntariness of Mr. Soulier’s statement (R v Soulier, 2020 MBPC 4).
Dr. Ducharme’s proposed evidence is that Mr. Soulier has a severe language disorder first diagnosed by a school psychologist in 2015, that the language disorder would have persisted in 2018 at the time he was interviewed by the police, and that it affected his ability to understand and respond to questions in the police interview to the extent that the information he provided in the interview is unreliable.
At the time of the alleged offence on March 18, 2018, he was in an adapted Grade 12 program. He always had difficulty in school and usually had educational assistants working with him. In February 2015 he was referred to a psychologist for an assessment because of the learning challenges he was facing. Through various standardized testing, it was determined that Mr. Soulier’s intelligence was artificially depressed due to his severe deficits in language skills. He was diagnosed with a severe language disorder. Adaptations and remediation can assist a person who has a language disorder, but the language disorder cannot be improved.
Dr. Ducharme has a PhD in Clinical Psychology and has worked as a clinician, supervisor and professor since 1996. Of particular relevance, he has worked with First Nations’ organizations and clients in northern Manitoba for several decades. He has published many papers and publications, presented at conferences and trained many doctors and clinicians. Since 2001 he has worked extensively in First Nations communities in northern Manitoba, especially as additional funding and services have been offered as a result of Jordan’s Principle. He testified that he has conducted cognitive testing approximately 2000 times. Over 70% of the clients have been First Nations people; 50% of the clients have been First Nations people from the north.
Dr. Ducharme testified about the difference between an intellectual disability and a language disorder. It is very common therefore, for people with language disorders to experience depression and anxiety. Dr. Ducharme testified that the severe language disorder would have been present when Mr. Soulier was interviewed by the police in 2018, and it still exists today. Dr. Ducharme opined that the language disorder affects how Mr. Soulier receives and presents information. Mr. Soulier does not have a significant intellectual deficit. Dr. Ducharme testified that Mr. Soulier understands language at a 10-year-old level. He testified that although 10-year-olds can engage in general conversation, if the language becomes “deeper”, or emotion is added to the mix (because emotions impact how we receive and express information) it goes beyond the capability of the average 10-year-old.
To be voluntary, a statement must not be provided in circumstances of oppression and must be the product of an operating mind. The modern rule with respect to voluntariness encompasses the negative right not to be tortured or coerced into making a statement, as well as the requirement that the person have an “operating mind.” Generally, all relevant factors and circumstances should be considered in terms of determining whether a statement is voluntary (R v Oickle, 2000 SCC 38 (“Oikle”)). It is recognized that the determination of oppressiveness has a subjective component. In other words, would a person in the circumstances of the accused experience the conditions as oppressive (Oickle; R v Bohemier,  MJ No 313 (QB))? The Court has watched the police interview with Mr. Soulier and reviewed the transcript. At points in the interview, Mr. Soulier is crying, curled up in the fetal position, banging his head on the wall and appears to be generally distressed. The evidence about Mr. Soulier’s language disorder and whether he understood the police officer and communicated what he wanted to communicate to the officer is legally relevant to whether his statement was voluntary.
The Court will allow Dr. Ducharme’s evidence, however, with the noted exceptions, on the basis that he is not analyzing the police questions so much as providing expert opinion about the likelihood of the subject not understanding. He is not being asked to provide an analysis of the reliability of the statement and whether it is a false confession. The Court is satisfied in considering the legal relevance of the evidence, its necessity, reliability and the absence of bias, and that the benefits of admitting this evidence outweigh its risks.