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Appeal Court Dicta

Evidence - Expert Opinion - Admissibility (Voir Dire)

. R. v. Cargioli

In R. v. Cargioli (Ont CA, 2023) the Court of Appeal considered appeals by three defendants from convictions, one for first-degree murder and two for second-degree murder. In this extract the court considers the SOR for the admissibility of expert evidence:
[40] When a ruling on the admissibility of expert evidence is challenged on appeal, this court will defer to the trial judge’s balancing of probative value against prejudicial effect absent legal error, a material misapprehension of the evidence, or an unreasonable conclusion: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 231-34, leave to appeal refused, [2017] S.C.C.A. No. 17. ...
. R. v. Whatcott

In R. v. Whatcott (Ont CA, 2023) the Court of Appeal considered (and allowed) a Crown appeal from an acquittal of a 'willfully promoting hatred' charge [under CCC 319(2)].

In these quotes the court generally considers the admission of expert evidence:
[9] An attendee and recipient of the flyer complained to the police, who investigated and laid a charge against the respondent for willfully promoting hatred contrary to s. 319(2) of the Criminal Code.

[10] At a judge-alone trial, the trial judge considered the elements of the offence: first, that the respondent communicated statements, in this case the flyer; second, that the flyer was distributed publicly; third, that the flyer promoted hatred; fourth, that the promotion of hatred was against an identifiable group; and fifth, that if the flyer promoted hatred, the respondent did so wilfully. Only the third (promotion of hatred) and fifth elements (mens rea of wilfulness) of the offence were in dispute.


(1) The admission of expert evidence and standard of review

[32] Expert evidence is presumptively inadmissible. In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, the Supreme Court established a basic structure for the admissibility of expert opinion evidence. That structure features two main components. The Court recognized four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert (Mohan, at pp. 20-25).

[33] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 (“White Burgess”), the Supreme Court further clarified that the admission of expert evidence involves a two-stage inquiry: at paras. 19, 22-24. The first stage requires the trial judge to consider the threshold requirements of admissibility laid out in Mohan. The second stage – the discretionary “gatekeeping” stage – requires the trial judge to balance the potential risks and benefits of admitting the evidence in order to determine whether the benefits justify the risks: White Burgess, at para. 24. Judges play the gatekeeper role to “screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission”: White Burgess, at para. 16. In White Burgess, relying extensively on R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal refused, [2010] S.C.C.A. No. 125, the Supreme Court alerts judges to the risk of the trier of fact deciding “simply on the basis of an ‘act of faith’ in the expert’s opinion” rather then using its own informed judgment: at para. 18.

[34] The standard of review of a trial judge’s ruling on the admission of expert evidence is well established. Deference is owed to a trial judge’s decision on admitting expert evidence, unless the trial judge commits an error of principle, materially misapprehends the evidence, or reaches an unreasonable conclusion: see e.g., R. v. Oppong, 2021 ONCA 352, 156 O.R. (3d) 401, at para. 34, leave to appeal refused, 2021 CanLII 133769 (S.C.C.); R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 47, leave to appeal refused, 2022 CanLII 700 (S.C.C.).

(2) Necessity

[35] In Mohan, the Supreme Court held that in order to meet the threshold of necessity, the expert evidence in question had to be more than merely helpful, yet this factor should not be judged by “too strict a standard”. The Court held that the expert opinion would be necessary if “it provide[d] information, ‘which is likely to be outside the experience and knowledge of a judge or jury’” and that … “the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature”: see p. 23.

[36] As the Court noted in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 56: “The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.”
. Moffitt v. TD Canada Trust

In Moffitt v. TD Canada Trust (Ont CA, 2023) the Court of Appeal reviewed, and accepted [para 76], a summary judgment motions judge's use of a customized voir dire to determine the qualifications for and admissibility (using White Burgess) of expert testimony:
The process for testing the expert evidence

[67] Although the hearing of the summary judgment motion was scheduled to proceed on September 9, 2019, the court ended up using that day to hear submissions regarding the procedure for cross-examining the expert witnesses. The motion judge gave directions to hold a kind of blended voir dire: Moffitt v. TD Canada Trust, 2019 ONSC 5208.

[68] The motion judge correctly observed that he must first determine whether the expert reports were admissible on the motion, as a court hearing a summary judgment motion can only consider admissible evidence: see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 55. To that end, he directed that the cross‑examination of the experts should extend beyond their qualifications to touch upon issues relevant to the necessity and reliability of their expert evidence. The motion judge also wanted to avoid the considerable expense that would be caused by requiring a re-attendance of the experts for additional cross‑examination. As noted, the motion judge directed that the blended voir dire be held on March 10 and 11, 2020, to be followed by argument on the merits of the summary judgment motion on March 12, 2020.

[69] At the conclusion of the cross-examinations of the experts, the motion judge informed counsel that he wished to hear submissions on the issues of the admissibility of the expert evidence, as well as its necessity and reliability. He also gave counsel a head’s-up that after hearing argument on the motion, he might later solicit further submissions from counsel as he reflected on the evidence and issues.

[70] At the argument of the motion, TD objected to the admissibility of the opinion evidence given by the appellants’ experts. In the case of Mr. Foster, TD argued that the evidence of Mr. Foster should be excluded as it consisted of bald assertions and failed to explain the methodology upon which his opinion was based, thereby preventing a proper testing of his opinion. As a result, Mr. Foster’s evidence did not meet the necessity criterion set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.

[71] By endorsement dated January 5, 2021, the motion judge provided the parties with a list of questions upon which he sought further submissions. It was clear from the list that the motion judge was considering the admissibility of the expert evidence. Counsel made submissions to the motion judge at a virtual hearing on February 2, 2021. At that time, the motion judge apparently raised an issue about deficiencies in Mr. Foster’s report.[11] The parties subsequently made further written submission to the motion judge.

The motion judge’s reasons

[72] The motion judge assessed the admissibility of each expert’s opinion evidence by applying the two-stage method – the four Mohan factors and the discretionary gate-keeping cost/benefit analysis – described in White Burgess, at paras. 23 and 24. The motion judge gave detailed, structured reasons explaining which portions of the opinion evidence from two of the appellants’ experts – Messrs. Huhn and Wood – and the two respondent’s experts – Messrs. Austen and Hoffman – he was admitting and why he was excluding other portions of their evidence. No issue is taken with his decisions in that regard.

[73] The motion judge excluded Mr. Foster’s opinion evidence in its entirety. He provided a detailed analysis and explanation as to why. His reasoning is summarized at paras. 121-123 of his decision:
In short, Mr. Foster’s report is based on very thin data, including some information (such as YouTube videos and newspaper reports) that are not admissible in evidence before me and cannot be used to support an expert report. More importantly, Mr. Foster’s report does not provide me with any ability to understand how (or even whether) he applied the IAPSC methodology. Mr. Foster has said, in his rebuttal reports, that this methodology (or the ASIS methodology) should have been used by the other experts and by TD in formulating their views. If that is the case, then Mr. Foster should have explained both the methodology and how it applied in his own reports. He did not.

The Court has a gatekeeper function to exercise when it comes to the admissibility of expert evidence. Mr. Foster’s failure to explain either the reasons for his conclusion or how he arrived at those conclusions raises significant issues as to both the necessity and relevance of Mr. Foster’s report. The report is arguably not necessary as it does not explain the reasons for the opinion and would not give the trier of fact an understanding of how the conclusions were reached. The report is also arguably not relevant for the same reasons.

However, regardless of whether Mr. Foster’s report would pass the first stage of the White Burgess test, it fails at the second stage. That stage requires me to consider the potential risks and benefits of admitting this report. The risks are clear. The trier of fact would be provided with opinion evidence from someone who has taken a firm view that TD was negligent in this case without having explained how he reached that conclusion. The benefits of this report are much less obvious because it does not explain the methodologies, the basis for the conclusion, or the analytical framework that was arrived to reach the conclusion. [Emphasis in original.]

[75] I am not persuaded that the appellants’ have demonstrated any reversible error by the motion judge in his decision to exclude Mr. Foster’s opinion evidence.

[76] At the hearing of the appeal, the appellants’ conceded the motion judge applied the correct legal principles to his assessment of the expert evidence.

[77] The appellants do not suggest that the motion judge misapprehended Mr. Foster’s opinion evidence. The appellants do not dispute that Mr. Foster’s report did not explicitly deal with how he used the guidelines formulated by the International Association of Professional Security Consultants (“IAPSC”) to reach his opinion. Indeed, the absence of such an explanation is patent on the face of Mr. Foster’s reports. However, the appellants contend the lack of a methodological explanation was not a defect in Mr. Foster’s report for two reasons: (i) in their 2021 submissions the appellants described how Mr. Foster’s report, properly read, had used the IAPSC methodology; and (ii) another expert, Mr. Wood, attached the IAPSC guidelines to his report, so they were available for the court’s consideration.

[78] The motion judge dealt with both submissions head-on. First, he pointed out that the explanation about how Mr. Foster may have used the IAPSC guidelines came not from the expert witness but from appellants’ counsel. As the motion judge observed about the efforts to explain how Mr. Foster used those guidelines: “I only have Plaintiffs’ counsel’s submissions in this respect, which include the submission that ‘[u]pon careful analysis, the basis for Mr. Foster’s opinion clearly aligns directly with the criteria in the [IAPSC methodology].’ The Plaintiff’s submissions go on to provide a detailed analysis of why they take this position.” (Brackets in original). This led the motion judge to state the obvious, at para. 119:
The problem with the Plaintiffs submissions is that none of this “careful analysis” came directly from Mr. Foster. It comes from the Plaintiff’s counsel. The careful analysis (and explanation) is something that should have been included in Mr. Foster’s report.
[79] As to the appellants’ submission that any defect in Mr. Foster’s report was cured by another expert attaching the IAPSC guidelines to his report, the motion judge quite understandably stated that that was of no assistance to him because he was left with an absence of evidence from Mr. Foster about which parts of the IAPSC methodology he applied and how the IAPSC methodology led him to his conclusions.

[80] In making his decision to exclude Mr. Foster’s expert evidence, the motion judge properly exercised his gate-keeper function with respect to opinion evidence. The record shows his decision was not based on an error in principle or misapprehension of the evidence.

[81] The appellants further submit the motion judge erred by failing to permit them to remedy any defect in Mr. Foster’s report by filing a further, correcting report. I see no such error for several reasons.

[82] First, the motion judge gave the parties six months’ advance notice of the process he planned to use to determine the admissibility of the expert evidence and the merits of the motion: a blended voir dire as the first part of the summary judgment motion using viva voce cross-examination of the expert witnesses; followed immediately by the argument of the summary judgment motion on the merits; with the likelihood that following the initial argument of the motion the motion judge would ask for further submissions, including submissions on the expert evidence, which he did. The parties had more than ample opportunity to put their “best foot forward” with their expert opinion evidence.

[83] Second, during Mr. Foster’s brief examination-in-chief on the voir dire, he began to give evidence about “other bank litigation cases” in which he had been retained. TD’s counsel objected that Mr. Foster was straying into an area not set out in his report, which would be contrary to r. 53.03(3).[12] The motion judge provided the appellants with two options: if they wished to pursue that area of questioning, TD would be entitled to an adjournment at the appellants’ expense or, alternatively, the appellants could forego further questioning in the area. The appellants elected to forego further questioning instead of filing a supplementary report detailing Mr. Foster’s evidence on the issue.

[84] Third, the motion judge was under no obligation in the circumstances to afford the appellants’ an opportunity to “cooper up” defective expert opinion evidence once it had been ruled inadmissible. Rule 53.03(2.1) sets out in detail the mandatory content required in an expert report, and the common law clearly identifies the content of the two-part test for the admission of opinion evidence. Parties must ensure the expert evidence they tender satisfies those requirements; they are not entitled, as a matter of course, to a mulligan if the evidence is ruled inadmissible.

[85] Nor does the record disclose that r. 53.08(1) would apply in the circumstances of this case.[13] That rule provides that where an expert report has failed to set out the substance of an expert’s proposed testimony on an issue, a court may grant leave to admit the evidence provided “there is a reasonable explanation for the failure.” The record does not disclose any such reasonable explanation. As well, as the motion judge explained, in the part of his reasons extracted at para. 73 above, that the deficiencies in Mr. Foster’s report went to the heart of his opinion, not some peripheral matter.

[86] For these reasons, I am not persuaded by the appellants’ second ground of appeal.


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