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Evidence - Expert Opinion - Qualification. R. v. Freedland
In R. v. Freedland (Ont CA, 2023) the Court of Appeal considered an issue of non-expert opinion evidence, here where the court wanted some satisfaction regarding the witness' experience on the subject matter - but not to the point of expert qualification:Was the non-expert opinion evidence inadmissible?
[23] The store clerk, who sold the shotgun to Mr. James and the appellant, testified that, based on his observations and conversations with the appellant before making the sale, the appellant seemed, to the store clerk, to be inexperienced with firearms. In cross-examination, the appellant sought to elicit a further opinion from the store clerk about whether the purchase of a shotgun in certain circumstances would “make sense”. The trial judge interrupted and indicated that the store clerk could not give opinion evidence about whether individuals were, or were not, experienced with firearms. He repeated this instruction in his jury charge.
[24] The appellant submits that the store clerk’s opinion that the appellant appeared to be inexperienced with firearms, based on the store clerk’s observations and conversations with the appellant, was admissible as non-expert opinion evidence. The appellant argues that the opinion offered by the store clerk was a convenient and accurate way for him to describe the cumulative effect of the various observations he made while assisting the appellant and Mr. James. The store clerk’s personal experiences as a firearms salesman allowed him to accurately incapsulate those observations by way of an opinion about the appellant’s apparent level of experience with guns: see e.g. R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 835-36; David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2022), at para. 30.01.
[25] The respondent does not take issue with the appellant’s description of the evidentiary rule permitting non-expert opinion evidence. The respondent contends, however, that there is no evidence about the store clerk’s background or experience that would justify allowing him to give the opinion he offered. Furthermore, the respondent argues that the evidence of the store clerk about the appellant’s apparent inexperience with firearms was of no significance in the case. It was never the appellant’s position that he was inexperienced around firearms.
[26] The store clerk’s opinion evidence was admissible. Although he was not asked directly about his experience, it is clear from his testimony that he had considerable experience with customers seeking to purchase firearms. As he explained in his evidence, part of his job involved questioning customers to get a sense of their level of experience and expertise with firearms so as to be able to suggest the most suitable firearm.
[27] Given the store clerk’s experience as a gun salesman, it was open to him to present his observations of the appellant’s behaviour and conduct by way of an opinion as to the appellant’s experience as a gun handler. There was no danger that the jury would have been misled by this evidence. The trial judge erred in instructing the jury to disregard the store clerk’s evidence about the appellant’s apparent lack of experience with firearms. . J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal allowed an appeal from a media-notorious family law application where the trial judge allowed admission of, and gave weight to, internet COVID literature without qualifying it as expert opinion:Did the motion judge err by accepting and relying on the respondent’s online resources as expert evidence and by finding that they raised legitimate concerns about the safety, efficacy and need for the COVID-19 vaccine?
[11] While the parties consented to the motion judge receiving their unsworn online materials, he was not bound to admit or give it any weight. In his reasons, the motion judge writes that “at the very least, [this evidence] informs me as to the type and quality of research each parent conducted in formulating their respective positions”. In the end, he gave little weight to the materials presented by the appellant noting that “I have not been able to find any indication – in the father’s evidence or in the body of COVID vaccine case law – that allegedly debunked theories have ever been properly considered or tested. In any court. Anywhere.” He further asked, “How can you take judicial notice of a moving target?” However, he gave considerable weight to the respondent’s appended materials which he treated as “expert” evidence in support of the respondent’s position that there were too many unanswered questions about the vaccine.
[12] The appellant’s chief complaint is that the motion judge did not properly scrutinize the respondent’s evidence and did not consider whether any of it satisfied the threshold criteria governing the admission of expert evidence – including whether the experts were qualified, independent and unbiased: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. The motion judge did cite and rely on two cases: ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056, 29 C.P.R. (4th) 182, and Sutton v. Sutton, 2017 ONSC 3181, which apply a common law test for the admission of online materials. They stand for the proposition that information obtained from the Internet can be admissible if it is accompanied by indicia of reliability, including, but not limited to:a) whether the information comes from an official website from a well-known organization;
b) whether the information is capable of being verified; and
c) whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed. [13] This guidance, however, is not a substitute test for the admissibility of expert evidence, and the motion judge did not refer to any of the leading cases on the topic, including White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. Few of the materials presented by the respondent even meet the criteria set out in the internet reliability cases cited by the motion judge. Indeed, the Federal Court in ITV Technologies stressed, at para. 18, that “little or no weight should be given” to information found online without “careful assessment of its sources, independent corroboration … and assessment of the objectivity of the person placing the information on-line”. The motion judge did not adequately heed this warning.
[14] For example, among the documents filed by the respondent were articles from ‘Total Health’ and ‘Contagion Live’, both of which purport to be medical journals. One document is titled, “Are people getting full facts on COVID vaccine risks” which quotes one Dr. Robert Malone, who claims to have invented the mRNA vaccine. Dr. Malone is, in fact, quoted several times; the motion judge concluding that “[w]ith [Dr. Malone’s] credentials, he can hardly be dismissed as a crackpot or fringe author”. Other people cited in this article are described by the motion judge as “well known leaders in their fields” and as “qualified and reputable sources”. The difficulty is, it is not entirely clear how anyone could conclude, from what the respondent filed, that Dr. Malone actually invented the mRNA vaccine or that any of those cited in the article are “well known leaders” in their respective fields. There was no basis to draw either of these conclusions.
[15] As the appellant points out, one author in particular, Dr. Tess Lawrie, simply penned an open letter posted on a website called ‘The Evidence-Based Medicine Consultancy Ltd.’, which appears to be a self-publication. The motion judge’s description of Dr. Malone, Dr. Lawrie and the other authors cited by the respondent – as leaders in their fields – seems to be based on nothing more than their ability to either create a website or be quoted in one. There is no apparent or verifiable expertise.
[16] While the motion judge did not expressly conclude that these people are experts, his reasons make it clear that he relied on them as such. For example, while ultimately concluding that there is no clear expert opinion on the benefits of vaccination, he proceeded to refer to Dr. Malone as an “equally competent and credible medical professional”. In fact, he went one step further by writing, at para. 79, that the “professional materials filed by the mother [are] actually more informative and more thought-provoking than the somewhat repetitive and narrow government materials filed by the father”.
[17] In my view, the motion judge fell into error by not assessing whether each document presented by the respondent was reliable, independent, unbiased and authorized by someone with expertise in the area. Instead of engaging in an analysis of the evidence presented, he embarked on a lengthy discussion about whose materials were more thought-provoking, which has no bearing at all on whether the respondent’s materials were admissible and should be given any weight.
[18] The motion judge also ignored the fact that, notwithstanding the well-known side effects (which are detailed in the Pfizer Fact Sheet filed by the respondent), the vaccine has been approved for children ages 5 and older by all regulatory health agencies, including Health Canada and the Center for Disease Control and Prevention. The motion judge seemed to find justification for the respondent’s position that the children should not be vaccinated (either because the vaccine is unsafe, or because not enough is known about it) because of Pfizer’s knowledge about potential side effects, which it is required to disclose by law. By doing so the motion judge treated the respondent as an expert in assessing pharmaceutical disclosure, while essentially dismissing those who are best positioned to interpret this information, public health authorities, who know how to factor the possibility of side effects into the approval process.
[19] The information relied upon by the respondent was nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all. This was a palpable and overriding error and I would, therefore, give effect to this ground of appeal. . Biogen Canada Inc. v. Pharmascience Inc.
In Biogen Canada Inc. v. Pharmascience Inc. (Fed CA, 2022) the Federal Court of Appeal considered the expert qualification stage in the admission of expert evidence:[49] The Supreme Court of Canada has emphasized that admissibility of expert evidence should be scrutinized when the expert evidence is presented for acceptance to the Court so as to enable the trier of fact to exercise its role as a gatekeeper (see R. v. J.-L.J., 2000 SCC 51 at para. 28). To ensure this, the Federal Courts Rules S.O.R./98-106 (the Rules) provide that objections as to admissibility must be raised in writing and as soon as possible in the proceeding (see Rule 52.5). In this case, at the trial management conference, the trial judge expressly directed that all preliminary issues and motions be brought to his attention before February 26, 2020. These normally would include any remaining objections to the experts and their reports.
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