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Evidence - Expert Opinion - Test (2) [White Burgess]. R. v. Prasad [necessity]
In R. v. Prasad (Ont CA, 2024) the Ontario Court of Appeal considers the 'necessity' element of the first step in the White Burgess expert evidence test, here in assessing whether 'expert' psychological evidence (about 'priming') is useful to aid the fact-finder in assessing their trust in "digitally enhanced audio" ('artificial intelligence'?) recordings:Necessity and the role of the expert in the trial process
[35] The more difficult question is whether the expert evidence is necessary to enable the trier of fact to draw accurate inferences from the tendered audio evidence. The cases have linked the criterion of necessity with concerns about the trial process and the danger that an expert might usurp the role of the trier of fact. In my view the expert evidence does not meet the test of necessity, as I will explain.
[36] The trial process, with its allocation of responsibilities between the judge and the trier of fact, is primordial: the trial process must be respected, particularly the role of the trier of fact, which must never be usurped by another. Consequently, to be admissible and to guard against such usurpation, opinion evidence must meet more exacting criteria.
[37] Justice Cromwell expressed the longstanding policy of the law, quoting Thayer, who said in 1898 that it is "for the jury to form opinions, and draw inferences and conclusions, and not for the witness": White Burgess, at para. 14. The point, added Cromwell J., “is to preserve trial by judge and jury, not devolve to trial by expert”: White Burgess, at para. 18. See also R. v. D.D., per Major J., at para. 49. While Cromwell J.’s quoted comments might appear related to the second White Burgess step of gatekeeping, I introduce them here because he noted that relevance, necessity, and reliability are “part of a sliding scale” that plays a role “in weighing the overall competing considerations in admitting the evidence”: White Burgess, at para. 25
[38] Justice Cromwell expressly approved, at para. 24 of White Burgess, Doherty J.A.’s statement in Abbey that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence” (emphasis added): Abbey, at para. 76.
[39] Justice Doherty cautioned: “the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the [expert opinion] evidence” because of complexity and “impenetrable jargon”: Abbey, at para. 90. He warned that, in addition “to the risk that the jury will yield its fact-finding function, expert opinion evidence can also compromise the trial process by unduly protracting and complicating proceedings”: at para. 91.
[40] The necessity inquiry does not examine the expert evidence in isolation. It asks whether the expert evidence is needed to enable the trier of fact to perform its fact-finding function properly and accurately.
Questions or criteria to guide thinking about whether expert evidence is necessary
[41] The cases have generated considerations that can be framed in terms of questions or criteria for assessing whether expert evidence is necessary. I consider several.
[42] First, is the subject matter of the expert evidence within or beyond the common experience of lay people? Major J. adopted the words of Professor Paciocco that expert evidence should be admitted: “Only when lay persons are apt to come to a wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts”: R. v D.D.,[7] at para. 57.
[43] A useful distinction can be made between hard and soft sciences. Professor David Paciocco (as he then was) stated: “While distorting opinions can occur within the hard sciences, the risk that they will exist is more prevalent with behavioural science.” He explained: “Reliability problems, while not peculiar to behavioural science, tend to be more intense for the behaviourist than for the ‘hard scientist’”[8].
[44] Indeed, judges and juries might be tempted to defer to experts in the field of the behavioural sciences. Justice McLachlin (as she then was) observed in Marquard, at para. 51, that “expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact” (emphasis added). In R. v. McIntosh,[9] Finlayson J.A. cautioned, at para. 14: “We are too quick to say that a particular witness possesses special knowledge and experience going beyond that of the trier of fact without engaging in an analysis of the subject matter of that expertise.”
[45] The notional line between what is within the normal experience of a trier of fact might change over time and might vary between localities, as O’Connor J.A. pointed out in R. v. D.S.F.[10] This line must be continually reassessed.
[46] Second, and relatedly, how might the admission of the actual subject matter of the expert evidence affect the trial process? There are many cases in which expert psychological evidence – the product of a soft science – has been rejected on the basis that the testimony does not go beyond the ordinary experience of the trier of fact. In McIntosh, Finlayson J.A. set out the area on which the expert evidence was proposed to testify, at para. 11:Dr. Yarmey commented on the factors present at the time of the robbery that would impair the witnesses’ ability to make an accurate identification, the problem of cross-racial identification, the quality of memory recall for perceived events over different time spans, the influence of “post event information” on memory, the validity of the photographic lineup, the misconceptions of jurors with respect to photographic lineups, the difficulties with “in dock” identifications, and police procedures relating to the identification of the two accused persons. [47] Justice Finlayson found that the trial judge was right to refuse to admit the evidence because the expert “is not testifying to matters that are outside the normal experience of the trier of fact: he is reminding the jury of the normal experience” (emphasis added): at para. 20. See also R. v. Frimpong (refusing expert evidence on the frailty of eye-witness testimony),[11] and R. v. Pearce (refusing psychological evidence on false confessions).[12]
[48] There is plainly no rule banning evidence as to the psychology of a witness. Much depends on the context. In R. v. R.D., the Supreme Court held that the evidence of a psychologist tendered by the defence on the reliability of the memories of children was admissible, while in R. v. D.D., decided four years later, the Supreme Court held that similar evidence tendered by the Crown was not admissible.
[49] I would draw an additional distinction between evidence about how psychological influences might affect a witness, and evidence about how psychological influences might affect a judge or jury. In this case, the proposed evidence touches on both. The police officer giving evidence as to drug culture lingo and the police transcriptionist would both be affected by priming, as would the judge as the trier of fact, on the theory advanced by the experts.
[50] It seems to me that a fundamental challenge to the routine, longstanding, and time-tested operation of the system of justice, such as how psychological influences might affect a judge or jury, should be treated with great caution, if not serious skepticism. We upend the common law at our peril.
[51] The third question is this: does the expert evidence express an opinion on the very question that the trier of fact must answer? There is judicial reluctance to freely admit such opinion evidence because doing so might usurp the task of the trier of fact. I pick out here, once again, the words of McLachlin J. in Marquard: “there is a growing consensus that [...] expert evidence on the ultimate credibility of a witness is not admissible”: at para. 51. In Mohan, Sopinka J. called for stricter scrutiny: “The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle”: Mohan, at para. 32. See also R. v. J.(J.‑L.).[13]
[52] This problem that undue weight might be given to the expert opinion on the “very question” that the trier of fact must answer can be avoided by more careful instructing questions put to an expert by counsel who is alert to this problem. Sometimes it can be overcome by the trial judge ordering partial redactions of the text of expert reports. Ultimate reliability, along with credibility, is the province of the trier of fact. Of course, trial judges too must not permit themselves to be unduly influenced by the opinions of experts on ultimate questions.
[53] Fourth, could the caution implicit or explicit in the expert opinion be adequately communicated by a jury instruction or by a judge’s implicit or explicit self-instruction? For example, in R. v. D.D., as noted, the majority of the Supreme Court found that the psychological evidence should not have been admitted. Major J. said, at para. 58: “In my view, the content of the expert evidence admitted in this case was not unique or scientifically puzzling but was rather the proper subject for a simple jury instruction.” See also McIntosh, at paras. 22 and 26. Justice Doherty concluded in Abbey that, in “addressing the extent to which the opinion evidence is necessary, the trial judge will have regard to other facets of the trial process – such as the jury instruction – that may provide the jury with the tools necessary to adjudicate properly on the fact in issue without the assistance of expert evidence”: at para. 95. At paras 54-83 the court considers the psychological theory of 'priming' as it relates to 'filling in the blanks' in poor quality audio recording.
. R. v. Prasad
In R. v. Prasad (Ont CA, 2024) the Ontario Court of Appeal dismissed appellant motions to admit the fresh evidence and his motion to reopen the appeal.
Here the court sets out "the principles governing the admission of expert opinion evidence":(1) Would the expert opinion evidence be admissible at trial?
[29] There is an abiding tension in the law of evidence. On the one hand, information that is relevant to a material fact in issue is admissible as trial evidence unless an exclusionary rule applies. On the other hand, information in the form of opinion is presumptively inadmissible. This last point is sometimes overlooked and bears repeating: expert opinion evidence is presumptively inadmissible.
(a) The principles governing the admission of expert opinion evidence
[30] The governing authority on the admission of expert evidence is White Burgess Langille Inman v. Abbott and Haliburton Co.,[1] which restates the principles set out in R. v. Mohan,[2] R. v. D.D.,[3] R. v. J.(J.-L.),[4] R. v. Sekhon,[5] and R. v. Abbey.[6]
[31] There are two steps in the White Burgess test to admit expert evidence. The first White Burgess step is the threshold requirement. It sets out four elements for admissibility:. the evidence must be relevant;
. it must be necessary in assisting the trier of fact;
. no other evidentiary rule would apply to exclude it; and
. the expert must be properly qualified to give the opinion. [32] The second White Burgess step requires the trial judge to weigh the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the potential harm to the trial process that might flow from the admission of the expert evidence; this step engages the trial judge’s discretionary gatekeeper function.
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The second White Burgess step: The gatekeeper function
[80] The second step of White Burgess requires the trial judge to exercise the discretionary gatekeeping function; the proffering party must establish that the potential benefits of the fresh expert evidence justify the potential harm to the trial process that might flow from its admission.
[81] Justice Cromwell noted that in gatekeeping, the trial judge can helpfully see, to repeat, relevance, necessity, and reliability “as part of a sliding scale” that plays a role “in weighing the overall competing considerations in admitting the evidence”: White Burgess, at para. 25. The trial judge “must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence:” White Burgess, at para. 54.
[82] I see no benefits to the admission of the expert evidence in this case and see several hazards which I laid out in applying the principles of the first White Burgess step, which I will not repeat. I add that the admission of the fresh evidence would interfere with and unduly protract the trial process.
[83] The two steps, as Cromwell J. noted in White Burgess, are not silos but are interrelated. On the facts of this case, the expert evidence would not survive a gatekeeper’s scrutiny and would not be admitted. . Kolapully v. Myles
In Kolapully v. Myles (Ont CA, 2024) the Ontario Court of Appeal largely dismissed an appeal of MVA damages.
Here the court outlines a test to admit expert evidence, and to assess it's reliability:(a) The Governing Principles on the Admission of Expert Evidence
[13] There are two steps in the test to admit expert evidence. The first is the threshold requirement, and the second engages the judge’s discretionary, gatekeeper function: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. The threshold requirement has four elements for admissibility: 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. At the second, gatekeeping step, the trial judge must weigh the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the potential harm to the trial process that might flow from the admission of the expert evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24; Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 7 C.P.C. (8th) 1, at paras. 35-36.
[14] The reliability of expert evidence that draws on novel or contested science, or science being used for a novel purpose, has drawn significant judicial comment.
[15] In R. v. J.(J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, following Mohan, Binnie J. rejected the “general acceptance” test formulated in the United States in Frye v. United States, 293 F. 1013 (U.S. D.C. Ct. App., 1923), opting instead to follow the “reliable foundation” test laid down by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (U.S. Cal., 1993). At para. 33, Binnie J. endorsed the factors that the U.S. Supreme Court set out at pp. 593-94 of Daubert for evaluating the reliability of novel science, which have become the criteria for reliability:(1) whether the theory or technique can be and has been tested:
Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.
(2) whether the theory or technique has been subjected to peer review and publication:
[S]ubmission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected.
(3) the known or potential rate of error or the existence of standards; and,
(4) whether the theory or technique used has been generally accepted:
A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.”
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Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” ... may properly be viewed with skepticism. [16] Daubert holds that the reliability of expert opinion premised on novel or contested science depends on the reliability of the underlying scientific methodology. As Alan Gold put it:[C]redibility is the product of methodology. Methodology — the logic of research design, measures, and procedures — is the engine that generates knowledge that is real. Observations (or a hunch or a guess) is a starting point in suggesting areas of inquiry, but the whole point of real science is to test observations (or hunches or guesses) systematically. The focus must be solely on principles and methodology, not on the conclusions that they generate.[1] [17] In his celebrated Report on the Inquiry into Pediatric Forensic Pathology in Ontario,[2] Justice Stephen T. Goudge, after reviewing the relevant case law, listed a number of factors that can be taken as a form of checklist, at p. 495:1. the reliability of the witness, including whether the witness is testifying outside his or her expertise;
2. the reliability of the scientific theory or technique on which the opinion draws, including whether it is generally accepted and whether there are meaningful peer review, professional standards, and quality assurance processes;
3. whether the expert can relate his or her particular opinion in the case to a theory or technique that has been or can be tested, including substitutes for testing that are tailored to the particular discipline;
4. whether there is serious dispute or uncertainty about the science and, if so, whether the trier of fact will be reliably informed about the existence of that dispute or uncertainty;
5. whether the expert has adequately considered alternative explanations or interpretation of the data and whether the underlying evidence is available for others to challenge the expert’s interpretation;
6. whether the language that the expert proposes to use to express his or her conclusions is appropriate, given the degree of controversy or certainty in the underlying science; and
7. whether the expert can express the opinion in a manner such that the trier of fact will be able to reach an independent opinion as to the reliability of the expert’s opinion. [18] Justice Goudge’s factors have been referred to in several Superior Court cases: see e.g., R. v. St. Amand, 2014 ONCJ 800 and R. v. Munoz Hernandez, 2013 ONSC 4257.
[19] In Mole and Mole v. Manwell, 2017 ONSC 3357, the expert proposed to give an opinion based on an admittedly novel surgical technique. Conlan J. considered the Goudge factors, noting that the evidence at hand did not satisfy many of them: at paras. 74-89. However, he stated that these factors “were not meant to be exhaustive”, and considered three other factors: First, the evidence is “comprehensible”; second, “it is not overly complex”; and third, the evidence “is not to be assessed in a vacuum”: at paras. 81-83. Conlan J. concluded that, although it was a close call, the evidence in the case met the reliability threshold.
[20] I would adopt the Goudge factors as a useful framework for trial judges to use in assessing the reliability of expert opinions based on novel or contested science. However, scientific techniques that are commonly used and reliable enough for clinical purposes might nonetheless be treated as novel when used for forensic or evidentiary purposes. As Binnie J. wrote in J.(J.-L.), at para. 35:While the techniques [the expert] employed are not novel, he is using them for a novel purpose. A level of reliability that is quite useful in therapy because it yields some information about a course of treatment is not necessarily sufficiently reliable to be used in a court of law to identify or exclude the accused as a potential perpetrator of an offence. [21] The lists of various factors in J.(J.-L.) and in the Goudge Report are not exhaustive, nor do they constitute mandatory codes, nor is there any need for them to be listed in a decision in rote form. That said, trial judges should consider these factors and may consider other relevant factors in the exercise of their discretion as evidentiary gatekeepers. . R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal states a serious concern with expert witness testimony:[1] Unreliable expert evidence is a serious concern for the justice system. As report after report have demonstrated, such evidence may result in miscarriages of justice that can impose severe and unjustified consequences on accused persons. These risks can sometimes exist even in cases involving highly experienced expert witnesses. While all justice system participants have a responsibility to guard against these risks, judges are the last line of defence. By carefully scrutinizing expert evidence and issuing decisions concerning its admissibility and weight, they alert everyone in the justice system to concerning red flags regarding particular experts. It is incumbent on all of us to take those red flags seriously to prevent a repeat of past miscarriages of justice involving unreliable expert evidence. The Hason case itself is an extensive example of such concerns.
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