Litigation Process a.. - The Advocates' Society

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- 4 - The key to developing useful and admissible expert testimony is twofold; true qualifications and true independence. After the Goudge Inquiry, there is a heightened awareness of the need to be vigilant in assessing these criteria. Neither one is more important than the other. Both are essential and counsel must be confident that their chosen expert can withstand a searching inquiry on each. This includes the extent to which counsel has been involved in instructing the expert and in the preparation of the report. Counsel’s instructions are producible and counsel should conduct themselves accordingly. No court is likely to believe that counsel was completely uninvolved in reviewing drafts and providing comments, though many advocate this approach. This is a counsel of perfection that is likely to be observed in the breach. But counsel, like the expert, can police themselves and ensure that any commentary, is fair and objective and does not lead the expert into any area of advocacy. Any involvement of counsel must be able to withstand the scrutiny of the trial judge. For an expert to truly understand his or her role in the trial process would require a legal education. But there are some basic concepts that are easily summarized which will assist experts, especially those who have not testified before, in understanding some of the more technical aspects of giving expert testimony. The Admissibility of Expert Evidence at Trial Expert evidence may be tendered at trial as an exception to the rule against hearsay evidence that confines witnesses to testifying as to matters of fact as opposed to matters of opinion. The rationale for the exception to the hearsay rule allowing experts to tender opinion evidence was articulated by Dickson J. in R v. Abbey. With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert’s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. An expert’s opinion is admissible to furnish the Court with scientific information © 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission of The Advocates' Society.
- 5 - which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusion without help, then the opinion of the expert is unnecessary. 4 It is therefore only in those cases where the issues to be determined are beyond the scope of the knowledge expected of laymen that expert evidence will be admissible. The test for the admissibility of expert evidence was subsequently elaborated upon and refined in R v. Mohan 5 . The following four criteria must be met before expert evidence will be admitted at trial: (i) (ii) (iii) relevance; necessity; the absence of an exclusionary rule; and (iv) a properly qualified expert. 6 i) Relevance To be relevant, expert evidence must be logically probative of a fact in issue. However, even if the expert evidence is relevant, the trial judge has the discretion to exclude such evidence where the prejudicial effect of admitting it would outweigh its probative value. 7 When deciding whether to retain an expert to tender evidence, the trial lawyer should consider whether the time required to present such evidence would be inordinate in comparison to its evidential value 8 and, if in the context of a jury trial, whether such evidence is likely to confuse, mislead or overwhelm the jury. 9 The court is more likely to admit expert evidence where doing so will not 4 R v. Abbey (1982), 138 D.L.R. (3d) 202 at 217. More recently, in R v. D. (D.), [2002] 2 S.C.R. 275, the Supreme Court of Canada has upheld the cite (?) 5 [1994] 2 S.C.R. 9 [Mohan]. 6 Ibid at p. 20. 7 Ibid at p.21. 8 J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2 nd Ed. (Toronto: Butterworths, 1999) at § 12.34. 9 Ibid. © 2012 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission of The Advocates' Society.
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Litigation Process a.. - The Advocates' Society

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