Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 5 43 day before Valentine's Day this year, the Quebec Court of Appeal set aside a second-degree mur- der conviction and ordered a new trial. The main reason: a forensic scientist with 14 years of experience as an expert witness submit- ted a conclusion during cross-examination at the jury trial that did not match the written report and testimony she provided during the pre- liminary inquiry. "Her credibility will always be questioned following this decision because defence lawyers are always going to use it," remarked crimi- nal lawyer Mia Manocchio. 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 accept- able bounds of conduct 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 tight- ening 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 pro- vided 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," notes Lee Stuesser, who has co- authored a book on evidence. "The sec- ond 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 under- scored its "special" dangers. More than two decades after the land- mark R. v. Mohan ruling, which estab- lished a four-part test for the admis- sibility of expert evidence, the Supreme Court of Canada yet again provided guidance this spring that may finally put an end to the battle of hired-gun experts. The unanimous ruling in White Burgess Langille Inman v. Abbott and Haliburton Co. unmistakably entrenches an expert's fundamental duty to the court to give impartial, independent, and non-parti- san opinion evidence. "The ruling trans- forms the expert from being a gladiator for one side to being akin to an officer of L E G A L R E P O RT \ L I T I G AT I O N MARCO CIBOLA Experts, eh? Courts still grappling with the issues despite cases clarifying and tightening threshold requirements for admissibility, adding new requirements for reliability, and stressing judge's role as gatekeeper. By Luis Millán A

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