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Evidence - Expert Opinion - Duties of Impartiality and Independence (2). R. v. Chang
In R. v. Chang (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal, here where the trial judge held "that the defence expert psychiatrist was not an objective expert":[5] The appellant submits that the trial judge misapprehended the evidence supporting his claim of psychosis, including the appellant’s preposterous utterances, and she erred in finding that the defence expert psychiatrist was not an objective expert. He asks that this court substitute a verdict of manslaughter.
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[8] There was no error in the trial judge’s exercise of her role as gatekeeper. She was required to critically examine the defence expert evidence and entitled to accept some, all, or none of it. It was open to the trial judge to question the defence expert’s objectivity respecting his core opinion that the appellant lacked the capacity to form the requisite intent for murder at the time of the shooting.
[9] Summarized in paragraphs 447 to 453 of her reasons are the trial judge’s detailed and numerous findings explaining why she rejected the core defence expert opinion evidence that the appellant lacked the capacity to intend to kill Ms. Lewandowski.
[10] Notably, the trial judge observed that Dr. Collins remained “rigid and intransigent” in the face of new, significant information that he conceded he would have liked to explore with the appellant, and in the face of explanations inconsistent with his opinion, claiming that they nonetheless would not have affected his opinion. For example, although Dr. Collins conceded that memory loss could result from a “red-out” during which a person could act intentionally, he seemed, as the trial judge found, “unwilling to entertain or consider” that the appellant could have had a red-out during the shooting, notwithstanding he had not explored the appellant’s memory loss with him.
[11] Importantly and relatedly, the trial judge found troubling his unqualified and unquestioning acceptance of all of the appellant’s statements to him. She noted as particularly troubling that Dr. Collins did not question the appellant on what she was correct to describe as some of the most problematic aspects of his statements or on the most important details about what happened in the days and hours leading up to and including the shooting. Specifically, Dr. Collins did not grapple with the inconsistencies in the appellant’s account about the shooting and his behaviour that the trial judge found was inconsistent with the hallucinations that he claimed he was experiencing. This included, as the trial judge noted, the implausibility of the appellant purporting to remember everything up to and following the shooting but nothing about the shooting itself. Further, Dr. Collins simply accepted the appellant’s claim that he was shooting at approaching strangers at the fence line, without considering how this could have been possible in light of the fact that all three shots were fired at Ms. Lewandowski, who was seated in the driver’s seat of the car. As Dr. Collins conceded during cross-examination, this entirely improbable scenario should have raised a concern that the appellant was malingering, a possibility Dr. Collins failed to seriously consider.
[12] The trial judge did not fail to consider or reject all the evidence that the appellant says supported Dr. Collins’ opinion of drug-induced psychosis. She concluded that the appellant’s statements that he feared being followed and killed by others were not preposterous for a drug dealer like the appellant to make, as he was involved in an inherently dangerous activity. The trial judge did accept that some of the statements, as well as instances of the appellant’s bizarre behaviour (such as, for example, dismantling and damaging part of his apartment, which resulted in police and firefighters attending, and his conduct at the McDonald’s restaurant following the shooting), demonstrated that the appellant experienced paranoia and delusional thinking, as well as hallucinations, around the time of and following the shooting.
[13] However, the trial judge was not persuaded and did not accept the defence expert opinion that the appellant’s drug-induced psychosis continued at the time of the shooting.
[14] First, the trial judge found, correctly in our view, that there was no admissible evidence “on the crucial issue of ongoing drug consumption” by the appellant in the days leading up to the shooting. Nor was there any evidence about what the appellant did in the 24 hours prior to visiting his friend’s house to take the gun used in the shooting a few hours later. Dr. Collins agreed that the appellant had the requisite intent at that point to take and possess a loaded firearm.
[15] Moreover, while acknowledging that there were instances of troubling behaviour by the appellant, the trial judge set out in meticulous detail the overwhelming evidence demonstrating that at the same time, the appellant engaged in purposeful activity, inconsistent with incapacity to form intent, in the days and hours immediately before, during, and after the shooting. These instances included: having the presence of mind to dispose of a gun and drugs off the balcony of his apartment before the arrival of police and firefighters; packaging the gun safely in a pillow so that he could retrieve it later; visiting his lawyer to obtain advice when he could not regain access to his apartment after it was sealed by the police; obtaining another gun from his friend when he could not retrieve the gun he disposed of off his balcony; calling Ms. Lewandowski on a cellphone that he had never used before; shooting Ms. Lewandowski three times at close range, notwithstanding her pleas to stop as recorded on her call to the 911 operator, and attempting to hide the gun from her; pulling her from the driver’s side of the car and leaving her to die on the road; and failing to try to communicate with her following the shooting.
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[17] In sum, the trial judge rejected that the appellant could not form the requisite intent for murder because of drug-induced psychosis and found that he had the requisite intent for murder. All her findings were thoroughly explained, rooted firmly in the record, and support her conviction of the appellant for second-degree murder. Effectively, the appellant’s submissions amount to an invitation for this court to retry this case. That is not our function. There is no basis to intervene. . Beazley v. Johnston
In Beazley v. Johnston (Ont CA, 2024) the Ontario Court of Appeal dismisses a motion to extend time to commence an appeal.
Here the court considers the required impartiality of expert witnesses:[21] After referring to White Burgess Langille Inman v. Abbott and Halliburton Co., 2015 SCC 23, [2015] 2 S.C.R 182, in which the Supreme Court stated, at para. 49, that the “threshold requirement [that the expert must be fair, objective and non-partisan] is not particularly onerous”, the motion judge held that this was one of those “quite rare” matters in which the proposed expert evidence was inadmissible.
[22] In accordance with White Burgess, the motion judge considered both the moving party’s circumstances and the substance of his evidence to determine the issue.
[23] Concerning the moving party’s circumstances, she noted the moving party was a party to the action with a direct financial interest in its outcome, as well as the comment at para. 49 of White Burgess that a direct financial interest in the outcome of the litigation is of “more concern” than a lesser interest in, or connection to, the litigation. She also observed that, in Marshall v. Jackson, 2021 ONSC 2361, 154 O.R. (3d) 715, Morgan J. stated, at para. 7, that, regardless of their professional qualifications, it is “trite law to say that a party cannot function as his or her own expert”.
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[82] However, even leaving aside that deficiency, the moving party’s many arguments do not squarely address the primary basis on which the motion judge excluded the Beazley reports. Namely, the motion judge held that, as a matter of trite law, the moving party was not entitled to act as his own expert witness. But she also found, based on an examination of the substance of the moving party’s proposed evidence, that he was “unable or unwilling to give opinion evidence that is fair, objective and non-partisan” and that he had taken on the role of an advocate, thus disqualifying himself from giving expert evidence. . National Steel Car Limited v. Independent Electricity System Operator
In National Steel Car Limited v. Independent Electricity System Operator (Ont CA, 2024) the Ontario Court of Appeal dismissed a 'taxation' constitutional challenge to the 'FIT Program', a renewable electricity program under the Green Energy and Green Economy Act, 2009.
Here the court considers the 'impartiality and independence' duty of expert witnesses:(4) The application judge did not err in finding the appellant’s expert witnesses to be biased
[123] The appellant’s fourth argument is that the application judge erred in finding that the appellant's experts were biased. The appellant led the expert evidence of Thomas Adams, an energy and environmental research advisor and media commentator focused on energy consumer concerns, and of Ross McKitrick, Professor of Economics at the University of Guelph. The application judge admitted the evidence of the two experts and decided to give it the weight it deserved in light of all the evidence.
[124] The application judge described the applicable law and found that Mr. Adams (a long-standing advocate of affordable electricity and the interests of electricity consumers) and Professor McKitrick (who, on philosophical, ideological, and religious grounds, opposes renewable energy development as a “job killer”, an impediment to economic development, and a dangerous expansion of government control over private life), lacked impartiality. Specifically, he found that they failed at the fourth of the Mohan criteria in the threshold stage, which requires, as codified by rule 4.1.01 of the Rules, the witness to be independent, objective, and impartial: White Burgess Langille Inman v. Abbott and Haliburton Co, 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 10. The application judge summed up his conclusion at para. 101 of his reasons:Mr. Adams and Professor McKitrick are entitled to their own opinions about the Provincial Government’s electricity policies and about the merits and demerits of the FIT Programs that are the subject matter of National Steel Car’s applications. However, the court is entitled to receive opinion evidence that is fair, objective and non-partisan from witnesses who have acquired special or peculiar knowledge through experience or study in respect of the opinion evidence. In the immediate case, National Steel Car’s experts have entrenched bias and preconceived conclusions and are not unbiased. Their opinions about the constitutionality of the FIT Programs are neither appropriate nor helpful. . G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considered an appellate challenge to the exclusion of a proferred expert's evidence, here primarily on the basis of lack of impartiality:Did the trial judge err in not admitting the affidavit of the father’s treating psychologist?
[39] The father submits that the trial judge erred in refusing to admit the affidavit of his treating psychologist as a participant expert. He submits that even if the trial judge did not accept the psychologist’s opinion evidence, she should have permitted him to testify on other issues, such as the number and content of his visits with the father.
[40] The trial judge’s decision not to admit the affidavit is amply supported by the record. As the trial judge noted in her ruling, for the court to accept evidence from an expert, it needs to be satisfied that the expert is independent and impartial: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 32, and 45-46. Here, the trial judge stated that the psychologist appeared to have been retained by the father to act in the role of a litigation expert in the guise of a participant expert. For example, the psychologist relied almost entirely on information provided to him by the father to opine on the mother’s diagnosis, current functioning, and treatment, as well as to opine on J. and to raise concerns with the report of the assessor appointed under s. 30 of the CLRA. There was no error in the trial judge’s conclusion that the psychologist’s “biased, unbalanced opinions based…almost exclusively on what he [had] been told by Mr. S for five years outweigh[ed] any benefit his evidence would provide.”
[41] Contrary to the father’s submission, the trial judge also did not err in refusing to allow the psychologist to testify about factual matters, such as how many appointments the father had attended. First, the trial judge accepted the evidence of the number of appointments, which she summarized in her ruling on admissibility. This is also evidence that the father could have provided.
[42] Second, evidence of what was discussed at the appointments either would have constituted hearsay or, if it was relevant to the father’s diagnosis and treatment, would have required opinion evidence. The trial judge specifically addressed why the psychologist had failed to provide anything helpful on this topic. She stated that, although in his affidavit the psychologist indicated he had diagnosed the father with Post Traumatic Stress Disorder (“PTSD”), he provided no information about his diagnostic process, treatment of the father, or the father’s progress in managing his PTSD. In view of this, there was no error in refusing to allow the psychologist to testify. . dTechs EPM Ltd. v. British Columbia Hydro and Power Authority
In dTechs EPM Ltd. v. British Columbia Hydro and Power Authority (Fed CA, 2023) the Federal Court of Appeal considered the evidentiary effect of an expert's party-bias:[49] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the Supreme Court of Canada enunciated the principle that it is only in clear cases where the proposed expert is unable or unwilling to comply with the duty to give fair, objective and non-partisan opinion evidence that concerns raised by the opposing party will go to admissibility. Anything less than clear unwillingness or inability to do so will go to the weight of the evidence of that expert. . R. v. Aziga
In R. v. Aziga (Ont CA, 2023) the Court of Appeal briefly states the impartiality requirements of expert witnesses:[85] ... As a matter of law, expert witnesses have an obligation to the court to give objective and non-partisan opinion evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 2. ... . Ontario (Natural Resources and Forestry) v. Town of South Bruce Peninsula
In Ontario (Natural Resources and Forestry) v. Town of South Bruce Peninsula (Ont CA, 2022) two judges (of three) of the Court of Appeal agree on the following comments regarding employed expert witnesses in this environmental POA prosecution case:The Governing Principles Relating to Employee Experts as Witnesses
[71] The threshold test for the admission of expert evidence is that: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified: R. v. Mohan[12] and R. v. Abbey.[13] These threshold requirements apply to employee experts. Apart from the issue of qualification, they are not at issue in this appeal.
[72] One aspect of proper qualification is the assessment of whether the witness has a disabling bias or lack of independence that renders the witness unable or unwilling to provide fair, non-partisan and objective assistance to the court.[14]
[73] Three concepts underlie an expert’s duty to the court: impartiality, independence, and absence of bias.[15] This court summarized and paraphrased these White Burgess principles in Mills: “Experts are expected to be (a) impartial, in the sense that they give only an ‘objective assessment of the questions at hand’; (b) independent, in the sense that their opinions result from an exercise of ‘independent judgment, uninfluenced by who has retained’ them or the ‘outcome of the litigation’; and (c) unbiased, in the sense that they do not ‘unfairly favour one party's position over another’”.[16] The court added: “The acid test is whether the expert's opinion would not change regardless of which party retained him or her.”[17]
[74] A trial judge’s assessment of a witness’s ability to provide fair, non-partisan and objective assistance to the court arises three times in the course of a trial. First, the trial judge addresses the issue in qualifying the witness to testify.
[75] The procedure prescribed by White Burgess calls on the expert to attest that his or her duty to assist the court overrides any obligation to the party calling the expert as a witness. Then: “the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty.”[18] But, “the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence.” Where the evidence falls short, the witness can be disqualified, “or those parts of it that are tainted by a lack of independence or impartiality, should be excluded.”[19]
[76] I make two observations about the qualification process. First, testimonial qualification is determined in a voir dire with the proponent tendering the witness, the opponent cross-examining, and the judge deciding. The onus throughout the qualification process is on the proponent and the admissibility standard is on the balance of probabilities.
[77] Second, perfectly impeccable impartiality or independence is rarely possible and is not the standard.[20] In White Burgess, Cromwell J. explained that: “This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it.”[21] He added this comment: “I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases”. Deficiencies that are not disqualifying can be accounted for by imposing limits on the witness’s evidence[22] and in weighing the evidence.[23]
[78] This rarity usually leads counsel away from a full blown effort to disqualify a witness. The voir dire is perfunctory, if it happens at all, once qualifications have been accepted and the parameters of the expert evidence are set. Instead, the focus is on showing through cross-examination on the merits of the opinion that the witness has a measure of partiality that must be discounted in weighing the evidence.
[79] The second time the trial judge assesses a witness’s ability to provide fair, non-partisan and objective assistance to the court is during cross-examination. The trial judge’s gatekeeping function is never relaxed. This court held in Bruff-Murphy, that even if the expert is permitted to give evidence, the judge must continue to “fulfill his [or her] ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony.”[24] Hourigan J.A. noted that “the court has residual discretion [under this ongoing gatekeeper function] to exclude expert evidence even after admitting it, if later in the trial prejudice emerges that was not apparent at the time of admission.”[25] As in Bruff-Murphy, the disabling bias may only emerge in cross examination on the merits and result in disqualification. This too is a rare event.
[80] The third time is when the trial judge weighs the expert’s evidence. Bias that is not disabling is treated as a question of weight, as this court observed in Alfano v. Piersanti [26]:Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.[27] [81] The assessment of an employee expert witness’s impartiality and independence is case-specific. The caselaw provides guidance and has yielded several factors that better specify the test beyond the governing principles. It is clear that an employment relationship is not a sufficient basis for finding that the witness lacks testimonial independence or is biased.[28] The area that has posed the most difficulties is where the expert employee had some involvement in the prosecution’s case. The deeper that involvement, the more likely the witness is to be disqualified as lacking the necessary degree of impartiality and independence, as the cases show.
[82] It is possible to make some useful analytical distinctions. Consider that an event causes an investigation, which leads to a decision to prosecute, and then to the prosecution itself. Each of these three stages has unique pressures. For explanatory convenience I address each, but deal last with the decision to prosecute.
Involvement in the Investigation
[83] The expert’s involvement in the investigation is not necessarily disqualifying. This is seen in many regulatory or quasi- criminal cases, which start with an event that is then investigated. In regulatory prosecutions, as this case among others shows, an expert opinion is necessary before charges are laid because causation is critical, might not be obvious, and might well be innocent. It would be impossible, where technical or scientific issues are engaged, for a prosecutor who is not expert in the field to evaluate the reasonable prospect of conviction without one or more expert opinions.
[84] For example, in Live Nation, the employed engineers were among the first on the scene in a Ministry of Labour investigation. Their investigation was technical and yielded information necessary to determine the physical cause of the collapse. They were not under the direction of the lead investigator on the prosecution. They were permitted to testify, with any concerns going to weight.
[85] Any expert must do some investigation or get investigation data in order to proffer an opinion. As Nakatsuru J. observed in Live Nation, the argument that “a proper expert should be one who is retained only after the investigation is complete, is handed a brief of the fruits of the investigation, and then testifies by giving an opinion based on a hypothetical or upon the work done by others” is unrealistic.[29] There is nothing untoward in the employee experts “observing the scene, conducting interviews, and performing testing”.[30]
[86] In Tang,[31] a forensic accountant employed by the Ontario Securities Commission was found not to be disqualified even though his regulatory investigation led to the criminal charges. His investigative work for the Commission did not prevent him “from giving any and all forensic accounting evidence in the criminal proceeding”.[32] He gave evidence as to tracing the funds, to which the issue of criminal guilt was only tangentially related. The court noted:The determination of whether an expert's prior connection with an investigation should disqualify that person from giving expert opinion evidence can only be made within the full context of the specific facts. The nature of the prior investigation, the role played by the individual expert in that investigation, and the nature of the proposed expert evidence would all be important considerations in the determination of whether the expert's prior involvement made the case…one of those relatively rare cases in which an expert's lack of independence or impartiality provided a basis for holding that the expert was not competent to testify.[33] [87] I now move to the other end of the spectrum from the employee expert’s involvement in the investigation to involvement in the prosecution itself.
Involvement in the Prosecution
[88] Involvement in the prosecution itself requires closer scrutiny than involvement in the investigation because employee experts participating in the prosecution present the risk of becoming advocates for the prosecution.
[89] In McManus, an officer was involved in drug investigations and received information about the accused over a period of four years. He participated in the execution of a search warrant, testified at the bail hearing, and, in response to comments of the preliminary inquiry justice, produced, on his own initiative, an expert report that strengthened the prosecution's case. This court held that the history established a lack of independence, so that the jury should not have heard the officer’s opinion.[34] Recently retired Justice David Watt extracted this principle from McManus, with which I agree:An interest in or connection with the litigation does not automatically render the proposed expert evidence inadmissible. However, a court must consider whether an expert's relationship to or interest in the litigation would result in the witness being unable or unwilling to carry out their primary duty to provide fair, non-partisan and objective assistance to the court. A heightened concern occurs for police expert witnesses to ensure their ability to offer impartial expert evidence.[35] [90] Livingston[36] did not involve an employee but engaged similar issues. The trial judge did not qualify a retired police officer, who was an expert in the forensic recovery, examination and interpretation of computer data. The trial judge noted, that the proposed expert: “took on an extensive, active and at times a proactive role in the investigation [, and] provided investigators with strategic and legal advice in their efforts to mount a case against the defendants.”[37] After an extensive review of the evidence, the trial judge declined to qualify the witness:Taking into consideration the nature and extent of Mr. Gagnon’s long and extensive participation in the police investigation of the defendants, as well his email comments revealing bias, I am satisfied there is a realistic concern that he is unable to provide independent, impartial and unbiased evidence.[38] [91] In Advanced Construction, the employee was an engineer. He was “himself investigating directly by his observations of the information accessible to him and he was assisting the investigators by being the contact person with the technical knowledge beyond the expertise of the lead investigator”.[39] He was in “constant contact” with the lead investigator, who could not interpret the evidence without his assistance.[40] He also retained the external expert but did not give pertinent information to him until the trial, when in doing so, he breached the witness-exclusion ruling.[41] Knazan J. decided that he would permit the expert to give evidence on all aspects of engineering and geotechnical engineering, but not on the root causes of the collapse of the rig that led to the charges.[42] He found that the witness “identifie[d] too closely with the prosecution to be able give an impartial opinion.”[43]
[92] In Live Nation, the employed experts sat in on suspect interviews. Nakatsuru J. found that this raised a “red flag”. However, they testified that they had suspended professional engineering judgment until all the facts were in. He permitted them to give evidence without limitations.[44]
[93] The degree of involvement can be mitigated by the expert’s approach to informing himself or herself about the facts on which the opinion is sought. In Tesfai[45] the trial judge allowed a police officer to give opinion evidence relating to drug trafficking. Trafford J. noted:Detective Sergeant Babiar testified about the procedures he followed to ensure the impartiality of his opinion in this case. He was approached by some of the senior officers in connection with a possible involvement in Project Marvel. They provided him with an overview of the project, in general terms. Once he agreed to join the investigation, the IPCs to be considered by him were selected by the Crown, and sent to him electronically. He received some surveillance folders, arrest folders and other information in some other folders. He also received an audiorecording of the calls and some transcripts. However, he did not pay any attention to this information, other than to open it and close it, so that he knew it related to this assignment. He did not consider the affidavits to obtain the two authorizations in the project. His first step was to read all of the calls, independently of anyone else's input. He did not read anything else. He did not have any theory of the Crown to guide him, because it could affect his analysis of the conversations. He did not want any information that might bias him in his review of the pertinent words in the pertinent calls.[46] The officer was permitted to testify as an expert.
[94] In T.A., the Crown wished to call an officer to explain coded and street language in wiretaps connected to a robbery. The trial judge found:The officer listened to wires as the project was ongoing and works in the same building as the officers directly involved in the investigation. He testified, however, that he did not proffer an opinion before charges were laid, he was not involved in the laying of charges, and he did not discuss his analysis of the wires with other officers involved in the project. I find that there is no realistic concern that this particular officer will not be able to execute his duty fairly and impartially.[47] [95] I turn now to the issue of the employee expert’s involvement in the decision to prosecute.
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