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Expert Witnesses: the Duty to Provide Fair, Non-partisan, and Objective Assistance

Qualifying the Expert WitnessFor expert evidence to be admissible the expert must be properly qualified.   The party who tenders the witness as an expert is required to demonstrate that the witness has acquired a special knowledge of a particular topic by formal study, practical experience, or both, which extends beyond that of the trier of fact. The competence of the witness to give expert evidence, or to be qualified as an expert, does not depend on how the skill was acquired, only that it has been gained.Justice Watt, Manual of Criminal Evidence, 2013 at pg. 428.  Deficiencies in an expert’s opinion go to weight, not admissibility. R. v. Marquard, 1993 CanLII 37 (SCC) at pg. 224. Additionally, in order for the expert to be properly qualified, the expert must be willing and able to fulfil the expert's duty to the court to provide evidence that is: i. Impartial, ii. Independent, and `           iii. Unbiased. Nothing less than scrupulous vigilance from trial judges is required when dealing with the admissibility of expert opinion evidence. R. v. Livingston, 2017 ONCJ 645 (CanLII), at para. 36; see also White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182, at para. 12: “We are now all too aware that an expert’s lack of independence and impartiality can result in egregious miscarriages of justice.” The court is required to consider the particular circumstances of the proposed expert and the substance of his/her proposed evidence. The test is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance. White Burgess, at para. 50. Given this test,

By |October 5th, 2017|Categories: Expert Evidence, Stuart O'Connell Criminal Blog|Comments Off on Expert Witnesses: the Duty to Provide Fair, Non-partisan, and Objective Assistance

The Admissibility of Expert Evidence

The modern Canadian law on the admissibility of expert evidence began with the judgment of Sopinka J. in R. v. Mohan, [1994] 2 S.C.R. 9. But in the last two decades since Mohan was decided the law on expert evidence has changed significantly.The test in White Burgess is now the governing test for the admissibility of expert evidence. It adopts a two-stage approach: the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge’s discretionary gatekeeper role. Each stage has a specific set of criteria. STAGE ONE:  Threshold Requirements for Admissibility Expert evidence is admissible when It meets the threshold requirements of admissibility, which are: a.    The evidence must be logically relevant; b.   The evidence must be necessary to assist the trier of fact; c.    The evidence must not be subject to any other exclusionary rule; d.    The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert’s duty to the court to provide evidence that is:                       i.        Impartial,                       ii.       Independent, and                      iii.       Unbiased.  [FN1] e.    For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose, and STAGE TWO: Gatekeeper Function:  Do the Benefits of Admitting the Evidence Outweigh the Costs? Expert evidence should not be routinely admitted with only its weight to be determined by the trier of fact. The unmistakable overall trend of the jurisprudence has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role”. White Burgess, at para. 20. The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential

By |August 9th, 2017|Categories: Expert Evidence, Stuart O'Connell Criminal Blog|Comments Off on The Admissibility of Expert Evidence
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