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Expert Opinion - Hearsay

. R v Gibson

In R v Gibson (Ont CA, 2021) the Court of Appeal comments briefly on hearsay as a basis for expert evidence:
[201] Expert opinion evidence which otherwise qualifies for reception is not excluded simply because it is based in part on second-hand information: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 893.

[202] The second-hand evidence is admissible to show the information on which the opinion is based. But this evidence is not proof of the underlying facts on which the opinion is based: Lavallee, at p. 893.

[203] As long as there is some admissible evidence to establish the foundation for the expert’s opinion, the expert’s evidence remains available for consideration by the trier of fact. However, the more the expert relies on facts that are not otherwise established in the evidence, the less weight the trier of fact may attach to the expert opinion: Lavallee, at pp. 893, 896. See also R. v. Wilband, 1966 CanLII 3 (SCC), [1967] S.C.R. 14, at p. 21.
. R v Sheriffe

In this criminal case, R v Sheriffe (Ont CA, 2015), the Court of Appeal made the following useful comments on hearsay occurring within what is otherwise expert evidence:
Expert Opinion Evidence and the Hearsay Rule

[101] In general terms, the admissibility of expert evidence is determined by the application of a two-step or two-stage process. The first step is concerned with the threshold requirements of admissibility. The second – the discretionary gatekeeping step – requires the judge to balance the potential risks and benefits of admitting the evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182, at paras. 19, 22-24; R. v. Sekhon, 2014 SCC 15 (CanLII), [2014] 1 S.C.R. 272, at paras. 43-44.

[102] Among the threshold requirements for the admissibility of expert opinion evidence is the absence of an exclusionary rule, other than the opinion rule itself. Usually, the exclusionary rule that intercedes is the character rule, which generally prohibits the Crown from introducing evidence of an accused’s bad character in proof of guilt: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 25. But another exclusionary rule, such as the hearsay rule, could also intervene.

[103] A trial judge must take seriously the role of gatekeeper assigned by the authorities. And this is so at not only the second or gatekeeper stage, but also at the threshold stage and as the evidence is given: Sekhon, at paras. 46-47; R. v. J.(J.-L.), 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600, at para. 28.

[104] It is well established that expert opinion evidence may be founded, in whole or in part, on the basis of statements made to the expert by others. For example, a psychiatric opinion about criminal responsibility is frequently based, at least in part, on what an accused told the expert about relevant events. But in order for the out-of-court account to be admitted as evidence of the truth of what was said, that account must be established by admissible evidence: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 46 (Abbey 1982). See also: R. c. Boucher, 2005 SCC 72 (CanLII), [2005] 3 S.C.R. 499, at para. 31; R. v. D.(D.), 2000 SCC 43 (CanLII), [2000] 2 S.C.R. 275, at para. 55.

[105] Where the factual premise of the expert’s opinion includes out-of-court statements made by others that are not established by otherwise admissible evidence, as for example by a listed or the principled exception to the hearsay rule, the opinion is entitled to less, and in some cases to no, weight: Abbey 1982, at p. 46; R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 893.

[106] A final point has to do with the capacity of an expert to give evidence of firsthand observations that she or he makes that may be relevant to issues at trial. The opinion rule does not bar an expert from giving evidence of fact: Abbey 1982, at p. 42. Put another way, an expert is not confined by the opinion rule to expressing opinions only. The expert is entitled to give evidence of firsthand observations, including for example, those made during a psychiatric interview by a psychiatrist called to proffer an opinion on criminal responsibility.


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