Expert evidence under the spotlight

More recently still, expert evidence came under the spotlight in the Guy Turcotte trial, who was convicted of second-degree murder of his two children. Just like in the first trial of the former cardiologist, the second trial yet again came down to conflicting expert evidence. It also underscored puzzling professional practices, with one expert admitting at trial that he had destroyed his notes of his 30 encounters with Turcotte.

For as long as expert witnesses have been allowed to testify, expert bias has always been a concern. So too is the quality and reliability of their evidence. Uneasiness over the disproportionate weight given to expert evidence too has raised alarms as has the acceptable bounds of conduct that counsel should observe when dealing with experts, be it in the preparation of experts’ reports and affidavits or in preparing experts to testify at hearings or trials. Indeed, the courts are still grappling with the issues raised by expert witnesses in spite of jurisprudence clarifying and tightening the threshold requirements for admissibility, adding new requirements to ensure reliability, and stressing the role of the judge as a gatekeeper. That numerous jurisdictions across the country have in recent years provided explicit guidance over the duty of expert witnesses has not quashed questions. “In our adversary process, we normally allow the parties to present their evidence so they are the ones who call in the experts, and we don’t want to interfere too much with the adversarial process,” noted Lee Stuesser, co-author of “The Law of Evidence.” “The second thing is we’re heading into an area where the judges are not experts, and it seems in this day and age that we need an expert for everything so the courts are struggling with that.”

That has never been more evident than in the past year. A number of recent decisions by the nation’s highest court as well as by appellate courts have highlighted the value of expert evidence in the “search for truth” but also underscored its “special” dangers. More than two decades after the landmark Mohan ruling, which established a four-part test for the admissibility of expert evidence, the Supreme Court of Canada yet again provided guidance this spring that may finally put to an end the battle of experts by hired guns. The unanimous ruling in White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23 unmistakably entrenches an expert’s fundamental duty to the court to give impartial, independent and non-partisan opinion evidence. “The ruling transforms the expert from being a gladiator for one side to being akin to an officer of the court,” observed Eugene Meehan, Q.C., a former executive legal officer at the SCC and now a lawyer at Supreme Advocacy in Ottawa. “The Supreme Court made it plain that the duty that experts owe is a duty to the court. It has the potential for a transformative difference in litigation where experts are used.”

The raison d’etre behind this duty is to prevent miscarriages of justice like the infamous case of Guy Paul Morin and the large number of wrongful convictions examined by the Goudge inquiry seven years ago, noted Supreme Court Justice Thomas Cromwell in his reasons. The dangers of expert evidence was underlined more recently still when the American legal community were stunned this spring after the U.S. Justice Department and the F.B.I. formally acknowledged that its “elite” forensic hair-sample analysts gave flawed testimony in favour of the prosecution in 96 per cent of the 268 criminal cases it examined over more than a two-decade period before 2000. “The White ruling legitimizes the Goudge Report and stresses that we can’t just be complacent about miscarriages of justice,” remarked Vincenzo Rondinelli, a Toronto criminal lawyer with Lafontaine & Associates.

The White ruling also settled a long-standing debate in case law over whether concerns about the independence and impartiality of an expert witness should be considered at the admissibility stage or whether it is simply a matter of weight. Most courts have in the face of doubts about the objectivity of the expert “handled it as a potential probative value versus prejudice, which judges are comfortable with,” pointed out Stuesser. Or as criminal lawyer Scott Cowan puts it: “Judges aren’t detectives but they are trying to be a truth seeker. They want the help of the expert. They want to hear the evidence, and if it’s rubbish, they’ll just ignore it at the end but that has risks.” The Supreme Court held that issues of independence and impartiality should be considered at both junctures. The Supreme Court confirmed that an expert’s duty to the court creates a threshold requirement for the admissibility of an expert’s evidence, and it set out a comprehensive framework for the admissibility of expert evidence by fine-tuning a two-step analysis set out by the Ontario Court of Appeal in R. v. Abbey, 2009 ONCA 624. In the first step of the new test, the party leading the evidence must establish the threshold requirements of admissibility (relevance, necessity, absence of an exclusionary rule, and a properly qualified expert – and in the case of an opinion based on novel or contested science, the reliability of the underlying science). The second part of the test requires the court to exercise its gatekeeping functions and balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. “Some judges take the role of gatekeeping very seriously and others don’t,” asserted Rondinelli who teaches forensic science and the law. “With the White ruling, judges are going to have the gatekeeping role seriously and understand that they have a very important role because it is an admissibility issue.”

But the threshold requirement is not particularly onerous. The Supreme Court reiterated, as it did in the recent decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, that although an expert’s opinion must be independent and impartial, a lack of independence does not necessarily disqualify an expert. More than a simple appearance of bias is required to disqualify the expert’s testimony. “The question 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,” wrote Justice Cromwell. That finding will likely spur further litigation, predicts Rondinelli. “We will see where that goes but I think there is going to be a lot of litigation, especially with in-house type of experts,” said Rondinelli.

While the White and the Saguenay ruling provides guidance that will be useful to triers of fact as well as civil and criminal litigators, a recent Ontario Court of Appeal yielded above all welcome relief for trial advocacy. The much-anticipated decision in Moore v. Getahun 2015 ONCA 55 was received with a collective sigh of relief by the bar after the appeal court held that consultation between and experts about draft reports is appropriate. A controversial lower court ruling prompted litigators to ask what meets the test of allowable communication with expert witnesses after the trial judge held that “counsel’s practice of reviewing draft reports should stop.” But the Court of Appeal held that banning “undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority.” Adequate safeguards are in place to protect against counsel interference with an expert’s objectivity and impartiality, added the Court of Appeal. Though experts do need guidance from counsel, the problem is how far should it go, wonders Glenn Anderson, author of “Expert Evidence.” “It can be abused of course when lawyers are trying to exert influence over their expert, trying to lead them down to a conclusion or perhaps editing reports or choosing language that may be different from the experts,” said Anderson, the director of litigation at the Nova Scotia Legal Services Division. “It’s very important that experts do their own work but they clearly need guidance by lawyers.”

More problematic is the Court of Appeal’s finding that communications about draft expert reports are presumptively privileged, fall within a “zone of privacy,” and are not subject to disclosure. The challenge with attaching litigation privilege to draft reports, notes and records of consultation between counsel and expert witnesses is that it makes it much more difficult to assess an expert’s independence, impartiality or thoroughness of work, according to Anderson. “There should be full disclosure to fully assess the expert’s conclusions, and how they got there, and the basis upon which they did, and the language they used. I sense that may not be the last word on that issue,” said Anderson.

That is an issue that Quebec lawyers too will face in the near future. Expected to be in effect next January, the new Code of Civil Procedure introduces significant changes to the rules regarding expert evidence. The new Code intends to encourage the use of a joint and single expert by the parties in the hope that it will save time and costs. Parties who want to call on their own expert would need the court’s permission. That will no doubt prove to a tough sell for the bar, says Donald Béchard, author of “L’expert.” Equally contentious is the obligation of parties to disclose to the court instructions given to experts. “That is a bombshell,” said Bechard, a Quebec City lawyer with DS Welch Bussieres. “It runs against solicitor-client privilege and litigation privilege. The mandate that I give to an expert is covered by professional secrecy. Discussions I have with an expert are too covered by professional secrecy or litigation privilege. It’s really surprising, and it will likely be challenged.”

While the recent batch of cases and developments address different angles of the law on expert evidence, the last word has almost certainly not been said on this thorny issue. But one thing is clear: experts have a duty to the court to provide independent and impartial evidence. “The bottom line is that we all have a role to play. Defence lawyers have a duty to challenge and not become complacent. The Crown has a duty not bring junk science into court, and judges have to take on their gatekeeping role as part of their mandate.”