Court rejects Jacob Hoggard sex assault appeal, but judge was wrong to admit trauma expert

What impact the appeal decision may have on completed cases that included this evidence — such as the Toronto sexual assault trial last year of disgraced fashion mogul Peter Nygard — remains to be seen.

Hoggard, now 40, was convicted by the jury in relation to an Ottawa woman who testified he raped her over several hours in a Toronto hotel room in 2016 when she was in her early 20s. She said Hoggard also slapped and choked her, and described bleeding afterward. The jury acquitted Hoggard of raping and groping another complainant, a teenage fan.

Hoggard had been out on bail pending the outcome of the appeal. The former pop star’s lawyers argued that Superior Court Justice Gillian Roberts’ decision to allow clinical psychologist Lori Haskell to testify about the “neurobiology of trauma” tainted the trial’s fairness. The judge said she believed Haskell’s testimony would help the jury better understand her legal instructions on avoiding myths and stereotypes in sexual assault cases. 

Using a PowerPoint presentation, Haskell told the jury about how a traumatic event like a sexual assault can cause memory to fragment, and can also cause dissociation and thought impairment.

That kind of testimony was “fraught with risks,” the top court said Friday. Even though Roberts cautioned the jury not to tie Haskell’s testimony about general concepts to the specific case against Hoggard, they returned to court with questions during their deliberations that suggested they were doing just that. 

Writing for a unanimous three-judge appeal panel on Friday, Justice Mary Lou Benotto concluded that Roberts erred in allowing Haskell to testify in the first place, but that she “corrected any misuse” of the evidence in her answers to the jury’s questions. In light of that, Benotto found there was no “substantial wrong” or miscarriage of justice requiring a new trial.

“The issue on appeal is not whether myth-based reasoning should be eradicated. Rather, it is how best to do so,” Benotto wrote, joined by Justices Paul Rouleau and Julie Thorburn.

“In my view, the expert evidence was not necessary in this case. A jury instruction alone would provide the necessary guidance and, moreover, would have avoided the obvious risks that later materialized in the jury questions.”

Hoggard’s team of appeal lawyers — Megan Savard, Gerald Chan, Arash Ghiassi and Spencer Bass — said in a statement that they were disappointed with the decision. 

“While we maintain that Mr. Hoggard’s trial was unfair, we respect the court’s decision,” they said. “We are carefully reviewing the judgment to consider our next steps.”

Benotto made clear in a section of her ruling titled “impact on future cases” that proper legal instructions from the judge to the jury are sufficient and a “better use of court time” than expert evidence trying to explain those instructions. 

“If expert evidence is found to be necessary to explain certain jury instructions, it will likely be sought in many cases,” she wrote. 

She pointed out the defence might also want to start calling their own experts, and it would make trials longer, more complicated, and risk distracting the jury. 

Hoggard still faces another sexual assault trial in September in Haileybury, Ont., regarding an alleged incident in 2016 involving one complainant.

Haskell also testified for the Crown about trauma last year at the high-profile sexual assault trial of Peter Nygard, who is being sentenced next month on four counts of sexual assault. Should Nygard move forward with an appeal, the outcome will depend on the specific facts of his case. Unlike at the Hoggard trial, for instance, the Nygard jury did not return to court with questions about Haskell’s testimony. 

“Each case is unique and cases affected by this type of expert evidence will need to be evaluated individually to determine what impact, if any, the evidence had on the jury verdict,” said Daniel Brown, former president of the Criminal Lawyers’ Association. 

Brown co-wrote “Prosecuting and Defending Sexual Offence Cases” with former Crown attorney and now provincial court judge Jill Witkin — who prosecuted Hoggard and pushed to allow Haskell to testify. 

“Moving forward, Ontario’s appeal court has slammed the door on this type of expert evidence being presented in other criminal trials,” Brown said.

In his written ruling on the decision to admit Haskell’s testimony at Nygard’s trial, released this month nearly a year after the fact, Superior Court Justice Robert Goldstein said he believed her evidence would be relevant in explaining “the scientific basis” for his own instructions to the jury on avoiding myths and stereotypes. He also found her testimony necessary to help jurors approach the evidence in the case without bias.

Reasoning that the Court of Appeal has now rejected. As Benotto bluntly stated: “I do not agree that expert evidence is required in order to understand jury instructions.”