Law Times

Law Times • June 6, 2016 Page 7 www.lawtimesnews.com Expert witness cross-examination conundrum T here are various strategies available to counsel in attempting to impeach an expert's credibility. Cross-examination on the basis of prior inconsistent statements is a well- known strategy. As seen in the recent Jian Ghomeshi acquittal, this technique is a powerful weapon in attacking the credibility of any witness. Another strategy is cross- examination to establish bias, attempting to establish the witness' partisanship. These strategies may fall short. Coun- sel may be unable to locate any prior state- ments. The expert may not have made or published prior inconsistent statements. Moreover, bias is difficult to establish even where the expert has a long history of pro- viding evidence to one side in litigation. But what of adverse findings of cred- ibility made against an expert in prior judicial determinations? May counsel use such findings in cross-examination to at- tack the credibility of an expert? That issue came before the court in Bruff-Murphy v. Gunawardena, 2016 ONSC 7. One of the defence experts had been the subject of three prior judicial determinations rejecting his evidence for reasons of partisanship. The expert had a history of stepping outside his role as an impartial witness and had become an ad- vocate for the defence. Based on past precedent, however, the court refused to permit cross- examination based on the prior judicial determinations. In the absence of a jury, such a finding is of little significance as the trial judge will be aware of the prior determinations. However, prohibiting such cross-examination may be of great significance in a jury case as the jury would not be aware of the prior determinations. The jury may place undue reliance on the expert's testimony, un- aware of the expert's history. The rationale for not al- lowing such cross-examina- tion was stated in an Ontario Court of Appeal decision, R. v. Ghorvei (1999), 46 O.R. (3d) 63. Such cross-examination is not permitted as the prior ju- dicial determination "is, in es- sence, no more than an opin- ion on the credibility of unrelated testi- mony given by this witness in the context of another case." Why the opinions of other judges are not worthy of consideration puzzles me. Surely, an opinion of a judge rejecting an expert's testimony is deserving of some consideration. Surely, every adverse deter- mination is a potential red f lag concern- ing the partisanship of the expert. But I understand there may be a practical issue in attempting to utilize the prior determi- nations. Doing so may require a consider- ation of the foundation of the prior deter- minations. Still, how difficult is it to place a prior determination in context? Indeed, in Ghorvei, the court was able to place the prior determination in context, concluding it was unfounded. Allowing cross-examination would thus have been highly prejudicial. But the wit- ness in the Ghorvei case was not an expert witness who was being paid to provide his testimony and there was only one prior determination. Should the Ghorvei rea- soning apply to expert witnesses who have suffered several prior adverse determina- tions? I pose this question in the context of two inquiries, both of which focused on the problem of partisan tes- timony by biased or hired- gun expert witnesses: Justice Coulter Osborne's "Report on Civil Justice Reforms" (2007) and Commissioner Stephen Goudge's "Inquiry into Pe- diatric Forensic Pathology in Ontario" (2008). The Osborne report re- ferred to an expert evidence working group complaining "that too many experts are no more than hired guns who tailor their reports and evidence to suit the client's needs." Rule changes were implemented in 2010 in an effort to fix the problem. Yet the problem of partisan expert witness testi- mony remains. Judges and tribunals con- tinue to criticize the partisan experts ap- pearing before them. Even Justice Douglas Cunningham's review of the SABS dispute resolution system in 2014 commented on biased expert assessments. We could leave the problem to the respective governing bodies for each discipline of expert. How- ever, we have seen how that has worked, or rather not worked, as the problem of par- tisan experts continues seemingly unabat- ed. We could advocate for beefed-up codes of ethics and more stringent discipline, but those are matters outside the jurisdic- tion of the legal profession. There are no easy solutions to the prob- lem of partisan experts. In an ideal world, experts who testify or provide reports for litigation would adhere to their oath to provide unbiased impartial testimony/ opinions. But we don't live in such a world. One partial solution may be to loosen the rules by permitting cross-examination based on prior judicial determinations. Perhaps the threat of such cross-exami- nation will cause some experts to refrain from partisanship. Perhaps such cross- examination will expose partisan experts to juries. I understand that some judges make mistakes. A judicial determination may be erroneous. However, the existence of multiple judicial rebukes is surely wor- thy of some consideration. And, yes, I un- derstand that just because an expert acts in a partisan manner in one case doesn't mean she will do so in the next case. How- ever, having acted in a partisan manner in one or more cases, where is the harm in having the expert justify himself in the context of the prior determinations? I'd go a step further. I'd set up an expert witness database. Every time an expert testifies or provides a report for use at trial, an entry would be made into the database indicating the nature of the testimony or report, which side retained the expert, and the nature of any judicial determina- tions made concerning the testimony or report. This database would be open for public view to the general public. Perhaps the miscarriage of justice that occurred in the Bruff-Murphy action would have been avoided had the defence expert been cross-examined on his three adverse judi- cial determinations. LT u Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. COMMENT Social Justice Alan Shanoff Who cares about the acquitted accused? BY JEFFREY MANISHEN T he recent acquittals of Jian Ghomeshi and Mike Duffy in highly publicized criminal trials raise a question not addressed by any columnist or commentator: Does anyone care about an accused who is acquitted? Some say that they weren't found to be innocent, but they won because the Crown couldn't prove the charges beyond a reasonable doubt. In the court of public opin- ion, that often leaves little room for sympathy. There can be no dispute that both men lived under significant stress for many months and were put to enor- mous expense to remain free of criminal stigma. Regrettably, that's the experience of many who suc- cessfully defend themselves against criminal charges. The entire process, ranging from bail conditions plac- ing significant restrictions on liberty, to disruption of personal and professional lives over many months, is extremely challenging. When the prosecution fails to es- tablish guilt, has the accused any recourse? Aside from the accused and his or her family, does anyone care? The short answer to both questions, in the vast ma- jority of cases, is a simple no. What's available by way of remedy? In Hill v. Hamil- ton-Wentworth Regional Police Services Board, 2007 SCC 41, the Supreme Court established the tort of neg- ligent investigation by police. Their conduct is meas- ured against the standard of how a reasonable officer in such circumstances would have acted, given the duty of care owed to a suspect. However, proof of negligence can be very difficult, as the facts in Hill's unsuccessful claim demonstrate. Nelles v. Ontario, 1989 CanLII 77 (SCC) provided for the right to sue the attorney general and Crown at- torneys for malicious prosecution. A successful claim requires not only an absence of reasonable and probable grounds to commence or continue with proceedings but also proof of an improper purpose of motive. It's tan- tamount to an abuse of the office of the attorney general and his agents. As stated by the majority of Supreme Court of Can- ada in Henry v. British Columbia (Attorney General), 2015 SCC 24, the decision to initiate or continue with a prosecution is one of the "core elements" of prosecu- torial discretion. As such, the principle of independence from judicial scrutiny requires a high standard for lia- bility and is limited to "only very serious conduct that undermines the integrity of the judicial process" so that courts won't second-guess a Crown's decision. What about a breach of the accused's rights under the Charter, as distinct from an acquittal? Prosecutorial conduct that involves the intentional failure to disclose evidence that the Crown knows, or is reasonably expect- ed to have known, is material to the defence to the extent that the failure to disclose it would likely impinge on the accused's ability to make full answer and defence is now the basis for Crown liability, a level that is lower than proof of malice. The majority in Henry relied on con- cerns for good governance, including the undesirable scenario of Crowns being faced with endless lawsuits and thus becoming "defensive" in their approach, as the basis for deciding not to establish a lesser standard, such as gross negligence. The accused must still show that "but for" the wrong- ful non-disclosure, he or she would not have suffered the harm experienced, another obstacle to winning a claim for damages. What about costs? Our courts have distinguished between the reasons for costs awards in proceedings between private litigants, such as the discouragement of unnecessary litigation and compensation for the successful party, and criminal proceedings. As the Crown acts in the public interest, "it is said that its discretion should not be inf luenced or fettered by the threat of a costs award,"as stated in R. v. Ciarnello, 2006 CanLII 29633 (ONCA). It is only when an accused can show "a marked and unacceptable departure from the reasonable standards expected by the prosecution" that costs may be awarded, decided in R. v. 974649 Ontario Inc., 2001 SCC 81. In R. v. Singh, 2016 ONCA 108, the Court of Appeal set aside a costs award when failure to disclose materi- al information led to a mistrial, notwithstanding many days of court time that were essentially wasted as a result of non-disclosure of material evidence. Third parties have won costs against the Crown, such as First Ontario Credit Union and Fercan Develop- ments, in R. v. Fercan Developments Inc., 2016 ONCA 269, for whom the Ontario Court of Appeal recently upheld such orders in a forfeiture application that the Crown pursued despite clear evidence that the applica- tion would fail. The unfortunate reality is that many accused persons may succeed at trial but still suffer profound personal loss for which they will never be compensated. So who should care about the accused who is acquitted? Perhaps the police, who may want to ref lect on whether they met the duty of care owed to the suspect at the investigative level. The Crown might think again about whether it really was in the public interest to continue with the prosecution. Senior justice officials shouldn't conclude that the system worked just because someone was acquitted. And members of the public should never overlook the plight of a fellow citizen who had to endure the experience of being prosecuted for a crime for which he or she was ultimately found not guilty. LT u Jeffrey Manishen is a partner in the firm of Ross & McBride LLP in Hamilton, Ont. and has been a cer- tified specialist in criminal law since 1989. He can be contacted at jmanishen@rossmcbride.com. u SPEAKER'S CORNER

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