Supreme Court Finds that Apparent Bias of Expert Witness Irrelevant

The Supreme Court of Canada recently ruled again on the issue of the admissibility of expert evidence and the basic standards for such admissibility.

In the case of White Burges Langille Inman vs. Abbott and Haliburton (2015 SCC 23), the court considered an appeal arising out of a professional negligence action by shareholders of a company against the former auditors of the company.  The shareholders started the action after they had retained a different accounting firm to perform various accounting tasks, which in their view revealed problems with the previous auditors' work.  The central allegation in the action was that the auditors' failure to apply generally accepted auditing and accounting standards caused financial loss to the shareholders i.e. the auditors were negligent in the performance of their professional duties.

 

The auditors brought a motion for summary judgment seeking to dismiss the shareholders' action.  In response, the shareholders retained a forensic accounting partner of the company's new accounting firm to review all relevant materials and prepare a report.  The forensic accountant's affidavit set out her findings, including her opinion that the auditors had not complied with their professional obligations to the shareholders.  The auditors applied to strike out the forensic accountant's affidavit on the grounds she was not an impartial expert witness. 

 

The Nova Scotia Supreme Court judge agreed with the auditors and struck out the forensic accountant's affidavit in its entirety.  The majority of the Court of Appeal for Nova Scotia concluded that the motions judge was mistaken and allowed the appeal.

 

The Supreme Court of Canada agreed with the Court of Appeal.

The court held as follows: 

The inquiry for determining the admissibility of expert opinion evidence is divided into two steps.

At the first step, the proponent of the evidence must establish the threshold requirements of admissibility.  These are the four factors set out in R. v. Mohan – relevance, necessity, absence of an exclusionary rule and a properly qualified expert.  Evidence that does not meet these threshold requirements should be excluded.

At the second discretionary gatekeeping step, the trial judge must decide whether expert witness 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.

 

Expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence.  They must be aware of this duty and be able and willing to carry it out.  The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand.  It must be independent in a sense that it is the product of the expert's independent judgment, uninfluenced by who has retained her or the outcome of the litigation.  It must be unbiased in the sense that it does not unfairly favour one party's position over another.  The acid test is whether the expert's opinion would not change regardless of which party retained her.  These concepts must be applied to the realities of adversarial litigation.

 

The Supreme Court held that concerns related to the expert's duty to the court and her willingness and capacity to comply with it are best addressed initially in the "qualified expert" element of the Mohan framework.  If the expert witness does not meet this threshold admissibility requirement,  her evidence should not be admitted.  Once this threshold is met, remaining concerns about an expert witness's compliance with her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his gatekeeping function.

 

The trial judge must determine, having regard to both the particular circumstances of the proposed expert, and the substance of the proposed evidence, whether the expert is able and willing to carry out her primary duty to the court.

 

Generally speaking, the expert's attestation or testimony recognizing and accepting the duty will be sufficient to establish that the threshold is met.  However, if a party opposing this ability shows there is a realistic concern that the expert is unable and or unwilling to comply with this duty, the proponent of the evidence has the burden of establishing its admissibility. 

 

The Supreme Court held that the exclusion at the threshold phase of the analysis should only occur in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.  Anything less than clear unwillingness and or inability to do so should not lead to exclusion, but should be taken into account in the overall weighing of the cost and benefit of receiving the evidence.

 

In this case, the auditors argued that the forensic accountant was inherently biased because she was a member of the new firm of auditors that had replaced them.  The court held that the concept of apparent bias is not relevant to the question of whether or not an expert will be unable or unwilling to fulfill her primary duty to the court.  The court further held that when looking at an expert's interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent.  The question is whether the relationship or interest results in the expert being unable or unwilling to carry out her primary duty to the court to provide fair non-partisan and objective assistance.

 

The court found that in this case there was no basis disclosed in the record to find that the forensic accountant's evidence should be excluded because she was not able and willing to provide the court with fair, objective and non-partisan evidence. 

Regards,

Blair

 

Express or Implied, Hearsay is Hearsay

Christopher Baldree was a small time drug dealer in Cornwall, Ontario. One night in May of 2006, Baldree and three other people were smoking marijuana in his apartment.  The Cornwall police, responding to a suspected break-in, knocked on the door. Baldree inexplicably allowed them to come into the apartment where the police found an open safe containing cocaine, a large cardboard box containing a Ziploc bag of marijuana, as well as the joints that Baldree and his friends had been smoking.  The police arrested Baldree and his companions and seized a mobile telephone and some cash.

At the police station, Baldree's mobile phone rang. The arresting officer answered it. At trial, the police officer described the conversation he had with the caller:

A male voice on the other end of the phone advised that he was at a particular address, that he was a friend of Megan and asked for Chris. The police officer answered, Chris who? The caller answered  "Baldree" and asked for one ounce of weed. The officer asked the caller how much Chris usually charged him.  The caller answered $150. The officer took down the caller's address and said that he would deliver it.

Baldree's lawyer objected to this testimony on the ground that it was inadmissible hearsay. The trial judge disagreed and found that the evidence was "non-hearsay".  He convicted Baldree for trafficking in drugs.

At the Ontario Court of Appeal, two of the three judges on the panel allowed Baldree's appeal and ordered a new trial. One judge found that the officer's evidence was hearsay.  Another judge found that he could not decide whether or not the evidence was hearsay but that it did not matter because the evidence failed on both an assessment of its necessity and reliability and on weighing its probative value against its prejudicial effect. The third judge found that the evidence was admissible as non-hearsay.

The Supreme Court of Canada unanimously dismissed the Crown's appeal and ordered a new trial.

Eight of the nine judges found that the evidence of the police officer was hearsay.  The majority ruling held that the defining features of hearsay are:

1. the fact that the statement is adduced to prove the truth of its contents; and

2. the absence of a contemporaneous opportunity to cross-examine the declarant.

The Court held that hearsay evidence is presumptively inadmissible as a matter of law. The issue in this case was whether this exclusionary rule applied to "express" hearsay only or to "implied" hearsay as well. The court found that an implied assertion intended for the truth of its contents (i.e. that Baldree was a drug dealer)  is no different with respect to the hearsay rule than an explicit assertion to the same effect. The principled reasons for their presumptive inadmissibility apply equally to both.

If the hearsay evidence does not fall under a hearsay exception, it may still be admitted if, pursuant to the principled analysis, sufficient indicia of reliability and necessity are established on a voir dire. In this case, no traditional exception applied and the evidence did not hold up to a principled analysis. This was a single drug purchase call of uncertain reliability. The police did not make an effort to find and interview the caller or to call him as a witness - where the assertion imputed to him could have been evaluated by the trial judge or jury in light of cross-examination, and the benefit of observing his demeanour.

Justice Moldaver, the last of the nine judges, concurred with the other eight justices in the result but wrote his own reasons. He found that the evidence of the drug purchase call was hearsay because it was introduced to prove that Baldree was in fact a drug dealer. Justice Moldaver wrote that in such cases, the real concern under the principled approach is reliability and it should be the focus of the inquiry. Reliability is founded on society's interest in getting at the truth. Justice Moldaver found that the evidence was not reliable.  If the evidence is not reliable, it should be excluded.

Regards,

Blair