Tag: hired gun
As part two of my earlier blog on the issue of expert witnesses at trial, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, is a great read for the Court of Appeal’s view on the role of the trial judge during expert testimony.
In the introduction alone, Justice Hourigan was clear that “gone are the days when an expert served as a hired gun or advocate” (para. 1) and that it is the trial judge’s role to act as a gatekeeper so that the expert opinion evidence before the court is “fair, objective and non-partisan” (para. 2).
While my earlier blog focused on the legal test during the qualification stage, Justice Hourigan was also clear that the trial judge does not become functus the moment an expert witness is permitted to give expert opinion evidence. Rather,
“The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action” (para. 63).”
In this case, Justice Hourigan commented that there were various options available to the trial judge after the qualification stage, which trial counsel should also be aware of as suggestions in their toolkit. To quote Justice Hourigan at paragraphs 67 and 68 of this decision,
 Given this ongoing gatekeeper discretion, the question remains of what, as a practical matter, the trial judge could or should have done in this case. His first option would have been to advise counsel that he was going to give either a mid-trial or final instruction that Dr. Bail’s testimony would be excluded in whole or in part from the evidence. Had he taken that route, he would have received submissions from counsel in the absence of the jury and proceeded as he saw fit. Alternately, he could have asked for submissions from counsel on a mistrial, again in the absence of the jury, and ruled accordingly. In the event that he had to interrupt Dr. Bail’s testimony mid-trial, he would have had to consider carefully how best to minimize the potential prejudicial effect of the interruption from the respondent’s perspective.
 The point is that the trial judge was not powerless and should have taken action. The dangers of admitting expert evidence suggest a need for a trial judge to exercise prudence in excluding the testimony of an expert who lacks impartiality before those dangers manifest.
Thanks for reading this week!
The Court of Appeal recently released a decision on the role of expert witnesses and the role of the trial judge as gatekeepers of such evidence.
In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, the Court of Appeal considered an appeal from a car accident case. Bruff-Murphy, the appellant, claimed that she suffered physical and mental injuries as a result of a car accident caused by Gunawardena. Gunawardena admitted liability and a 23-day jury trial occurred to determine Bruff-Murphy’s damages. At trial, the jury awarded Bruff-Murphy $23,500.00 in general damages. On appeal, Justices Lauwers, Hourigan, and Benotto overturned the trial decision and ordered a new trial because “the defence proffered the evidence of a wholly unsuitable expert witness” (para. 72).
The expert at issue was a psychiatrist and he was the last witness in the defence’s case. In particular, his expert opinion was that the plaintiff did not develop any psychiatric disorders or limitations as a result of the accident. However, the methodology of his process and the tone of his expert report were found by the Court of Appeal to be more prejudicial than probative. The Court of Appeal was highly critical of how unfair it was for this expert to focus on the inconsistencies between the information that he received from the plaintiff though an interview and the information that he later discovered from reviewing the plaintiff’s medical records without putting these inconsistencies to the plaintiff and giving her the opportunity to explain. The overall tone of the expert report, where the expert went out of his way to make damaging comments to the plaintiff’s case, was also found to be reliable indicator of the expert’s testimony.
While the Court of Appeal appreciated that the trial judge correctly turned his mind to the four traditional criteria for the admissibility of expert evidence as established in R. v. Mohan, the trial judge was found to have erred for failing to weigh the prejudicial effect of this expert’s evidence against it’s probative value as the final step during the qualification stage.
To quote Justice Hourigan at paragraphs 35 and 36 of this decision, the test during the qualification stage is as follows,
 The first component requires the court to consider the four traditional “threshold requirements” for the admissibility of the evidence established in R. v. Mohan, 1994 CanLII 80 (SCC),  2 SCR 9: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified.
 The second component is a “discretionary gatekeeping step” where “the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks”: para. 24. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.
For those who are interested in the topic of admissibility of expert evidence, click here for the Supreme Court of Canada decision in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.
Thanks for reading and stayed tuned for my blog later this week on the trial judge’s gatekeeper role after the qualification stage.