Canadian Lawyer

44 J U L Y 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m the court," observes Eugene Meehan, a former executive legal officer at the SCC and now a lawyer at Supreme Advocacy LLP 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'être behind this duty is to prevent miscarriages of justice like the infamous case of Guy Paul Morin and the large number of wrongful con- victions examined by the Goudge inquiry seven years ago, noted Supreme Court Justice Thomas Cromwell in his reasons. The dangers of expert evidence were underlined this spring, when the American legal community was stunned after the U.S. Justice Department and the FBI for- mally 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 in the 20-year period before 2000. "The White ruling legitimizes the Goudge report and stresses that we can't just be complacent about miscarriages of justice," says 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 impar- tiality of an expert witness should be considered at the admis- sibility 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 preju- dice, which judges are comfortable with," points 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. It confirmed that an expert's duty to the court creates a threshold requirement for the admissi- bility of an expert's evidence, and it set out a comprehensive framework for the admissibil- ity of expert evidence by fine- tuning a two-step analysis set out by the Ontario Court of Appeal in R. v. Abbey. In the first step of the new test, the party leading the evidence must establish the threshold requirements of admissibility (rel- evance, 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 gate- keeping 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 gatekeep- ing very seriously and others don't," says Rondinelli, who teaches forensic science and the law. "With the White ruling, judges are going to have [to take] 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), 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 relation- ship 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 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." While the White and Saguenay rulings provide guidance that will be useful to triers of fact as well as civil and criminal litiga- tors, a recent Ontario Court of Appeal decision yielded, above all, welcome relief for trial advocacy. The much-anticipated decision in Moore v. Getahun was received with a collective sigh of relief by the bar after the appeal court held that consultation between lawyers and experts about draft reports is appropriate. A controversial lower court ruling prompted litigators to ask L E G A L R E P O RT \ L I T I G AT I O N JUDGES AREN'T DETECTIVES BUT THEY ARE TRYING TO BE A TRUTH SEEKER. THEY WANT THE HELP OF THE EXPERT. . . . IF IT'S RUBBISH, THEY'LL JUST IGNORE IT AT THE END BUT THAT HAS RISKS. SCOTT COWAN eneinHutchison-2_CL_Mar_15.indd 1 2015-02-09 9:58 AM

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