A careful reading of Crown counsel’s objections at trial
satisfy me that she did object to Dr. Gojer giving any evidence
about the subjective component of the provocation defence. She
referred to this part of his proposed opinion as “entirely outside
the purview of this expert”. She also referred the trial judge to
the case law identifying the requirement that expert evidence to
be admissible must be beyond the ordinary experience of jurors.
On a fair reading of the trial record, I am satisfied that Crown
counsel at trial took the same position on this issue as did the
Crown on appeal.
Should the court order a new trial?
 The Crown has demonstrated an error in law at trial. To
obtain a new trial based on that error, the Crown must establish
that in the context of the trial as the issues unfolded and were
argued, the error might, to a reasonable degree of certainty, be
believed to have had a material impact on the acquittal: R. v.
Graveline,  1 S.C.R. 609,  S.C.J. No. 16, 2006 SCC
16, at paras. 16-17; R. v. McRae,  3 S.C.R. 931, 
S.C.J. No. 68, 2013 SCC 68, at paras. 30-37; and R. v. George,
 S.C.J. No. 100, 2017 SCC 38, at para. 27.
 The Crown has met its burden. In my view, as counsel
accepted on appeal, provocation was the central issue at trial. In
considering that defence, the jury was obliged to decide whether
Mr. Suarez-Noa should be partially excused for having murdered
Ms. Cowell. The decision was clearly a difficult one. The jury
may well have given considerable weight to what may have
appeared to the jury to be an objective assessment of Mr. Suarez-Noa’s conduct made by a trained medical expert with
specialized expertise in understanding the human condition. In
reality, for the reasons set out above, Dr. Gojer was at best in no
better position than the jury to make this assessment.
 I would allow the appeal, set aside the acquittal on the
charge of second degree murder and the conviction on the charge
of manslaughter, and order a new trial on the charge of second