Law Times

Law Times • sepTember 10, 2018 Page 13 www.lawtimesnews.com EXPERT WITNESS Admissibility of expert witnesses still debated BY MARG. BRUINEMAN For Law Times T he admissibility of ex- pert witnesses and the issue of bias in both the civil and criminal con- texts continues to be a focal point three years after the Supreme Court of Canada introduced a set of establishing principles. The Ontario Court of Ap- peal recently confirmed the high court's approach by concluding that the testimony of an accident reconstruction officer presented as an expert witness satisfied the prerequisite required by the court despite his bias as a police officer toward the Crown. The appeal panel in R. v. Natsis further fol- lowed the Supreme Court's di- rection by granting a great deal of deference to the conclusions made by the trial judge. The bottom line for lawyers and the courts in assessing the evidence of experts as witnesses is to prevent miscarriages of justice by allowing weaker or improper expert evidence, says Toronto criminal lawyer Adam Weisberg, who is also a Toron- to-area director for the Ontario Criminal Lawyers' Association. "You have to consider a bal- ancing of factors when you think about the admissibility of expert witnesses. There can always be more scrutiny to prevent bad science or what we call some- times junk science being before the trier of fact. But, at the same time, we need to balance this concern," he says. In Natsis, considered one of the longest drunk-driving cases in Canadian history going 55 days over three years, the trial judge agreed there was a realistic concern that the expert, a po- lice officer, had a bias toward the criminal case presented by the Crown and police. But in con- victing Pembroke dentist Christy Natsis of impaired driving caus- ing death and dangerous driv- ing causing death, Justice Neil L. Kozloff of the Ontario Court of Justice found that the facts the reconstructionist presented were not impacted by the bias. Court heard that Natsis had been drinking at a Kanata bar in 2011 before hopping into her SUV. While driving westbound along Highway 17, she slammed into Bryan Casey's truck near Arnprior, travelling in the oppo- site direction. Casey was killed. Accident reconstructionists were called in to examine the scene and provide a report on how the crash occurred. Con- stable Kelly, an OPP officer and technical collision investigator, took measurements and ob- served a deep gouge in the east- bound lane that was closer to the shoulder than the centre line. He also noted more debris con- centrated in the eastbound lane. After examining the vehicles, he noticed that the undercarriage of the truck was significantly damaged and bent while Natsis's car did not sustain similar dam- age. He concluded that that the victim's vehicle caused the gouge in the road and that the location of the gouge indicated where the collision occurred. Kelly, the reconstructionist, testified that in his opinion the appellant's vehicle crossed the centre line and crashed head on into the victim's vehicle. Nat- sis's position at trial was that the victim crossed into her lane and caused the accident. In writ- ing for the appeal panel, Justice Gladys I. Pardu of the Court of Appeal for Ontario said she found no basis to "interfere with the trial judge's conclusions" on the issue of whether the accident reconstructionist showed bias. "Despite his many criticisms of Kelly, and his conclusion that there was a realistic concern that Kelly might be biased, the trial judge concluded that Kelly was able to give his evidence, as cir- cumscribed by the trial judge, impartially," wrote Pardu in the May decision. In addressing the issue raised by the defence that the Crown should have prof- fered earlier drafts of the officer's reports, the appeal court agreed that the Crown should have pre- sented the draft reports for the accused council's inspection. Pardu concluded: "I am not satis- fied, however, that this could pos- sibly affect the reliability of the resulting decision or the fairness of the trial process" and that it did not impair the accused's right to make full answer and defence. Insurance defence litiga- tor Dan Reisler says there have been some inconsistencies in the courts on the issue of bias, point- ing to his own Ontario Court of Appeal case last year, Bruff- Murphy v. Gunawardena, as one in which an expert was dis- missed because of bias. "I think the Bruff-Murphy case is now isolated and stands alone and may be restricted to its peculiar facts or has become less important as a precedent. I think in Natsis the Court of Ap- peal has accepted and adopted the Supreme Court's direction that it was a rare situation that a witness would be disqualified for bias and preserving for trial judges the role of being the gate- keeper and giving a great deal of deference when they make a de- cision like that," he says. Toronto criminal defence law- yer Joseph Neuberger, a past pres- ident of the Toronto Lawyers As- sociation, says the trial judge did a good job teasing out the evidence that was grounded in fact. He says both the prosecution and defence benefits when it comes to the pre- sentation of specific technical ar- eas such as accident analysis. But Neuberger says the overall con- versation about the use of expert witnesses needs to continue to evolve. He says courts still need to demand more of those who pres- ent themselves as an expert. Ex- pertise, he adds, should include a fair degree of experience, training and education in that particular field. Neuberger says he worries that the same type of objective grounding isn't always applied to assess "softer" areas such as socio- logical or psychological evidence, which he feels should be subject to a higher degree of scrutiny. "I'm glad over the last few years the Supreme Court and the courts have tightened up the rul- ings and basis upon which expert evidence can be induced, be- cause prior to the recent ruling, it seemed that almost anybody can qualify as an expert and I found that to be quite troubling. In spite of that, I still believe that we are admitting far too much evidence under the guise of ex- pertise when in fact it is no bet- ter than lay person evidence or is evidence that may be borne out of some sort of investigative bias, in my opinion," says Neuberger. And mistakes do happen, he says, pointing to the 2008 Goudge Inquiry, which followed a review that found mistakes in 20 child death investigations. It examined serious concerns over the way criminally suspicious deaths involving children in On- tario were handled by Dr. Charles Smith, considered Ontario's top pediatric forensic pathologist. He was later stripped of his licence to practice. Former appeal court judge Stephen Goudge found that Smith had made false and misleading statements in court and exaggerated his expertise. Joe Colangelo, counsel to the Gluckstein Personal Injury Lawyers PC on health law cases, points out that there's a distinct difference between the type of previously accepted evidence presented in Natsis and novel scientific theory that courts can sometimes be asked to consider, such as shaken baby syndrome presented by Smith in many of the baby death cases. In addition, civil courts have been concerned over so-called hired-gun advocates — witnesses presented as experts who come to court with a bias toward one party in the litigation, he says. So, there was an identified need for courts to impose strict control over experts, says Colangelo. He says he fears the result is an over- emphasis on the process of quali- fying an expert witness, which he believes may be turning into an access to justice issue. "I think in the average trial we are spending too much time trying to vet the qualifications of experts and there needs to be a process in advance of the trial for vetting experts to determine whether they are qualified or not. And if there is an allegation of bias, I think clients need to recognize based on White Bur- gess and Natsis that it's only in the rarest of cases that an expert will be completely disqualified on the basis of bias," he says. He suggests a pre-vetting pro- cess through the pre-trial pro- cess that doesn't consume a great deal of trial time. Any party that wants to challenge the qualifica- tions of someone being present- ed as an expert should do it in advance of the trial, he adds. LT Adam Weisberg says the bottom line for lawyers and the courts in assessing the evi- dence of experts as witnesses is to prevent miscarriages of justice by allowing weaker or improper expert evidence. I think in the average trial we are spending too much time trying to vet the qualifications of experts and there needs to be a process in advance of the trial for vetting experts to determine whether they are qualified or not. Joe Colangelo Untitled-3 1 2018-07-17 3:00 PM

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