Friday, June 16, 2017

Expert Evidence

 Bruff-Murphy v. Gunawardena, 2017 ONCA 502:

 

[34]       In White Burgess, a decision released shortly before the judgment under appeal, the Supreme Court of Canada provided clarity and guidance regarding challenges to experts on the basis of bias and lack of independence. Cromwell J., writing for the court, stated at para. 19 that the basic structure for the law relating to the admissibility of expert evidence has two main components.

[35]       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] 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.

[36]       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.

[37]       The analysis under the second component is best thought of as a specific application of the court's general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value: R. v. Bingley, 2017 SCC 12, 407 D.L.R. (4th) 384, at para. 16. As Charron J.A. wrote in R. v. K. (A.) (1999), 45 O.R. (3d) 641 (C.A.), at para. 76, application for leave quashed, [2000] S.C.C.A. No. 16: "The balancing process which lies at the core of the determination of the admissibility of this kind of evidence is not unique to expert opinion evidence. It essentially underlies all our rules of evidence." In White Burgess, Cromwell J. referenced Mohan and made the same point at paras. 19 and 20:

Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21.

The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21.

[38]       Cromwell J. further explained that lack of independence or impartiality on the part of an expert witness goes to the admissibility of the witness's testimony, not just to its weight: para. 40. Specifically, in the governing framework for admissibility, the court should consider an expert's potential bias when determining whether the expert is properly qualified at the initial threshold inquiry: para. 53.

[39]       However, he added that bias should also be considered when the court exercises its gatekeeping exclusionary discretion, writing at para. 54:

Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the 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. [Emphasis added.]

In the overview of his discussion of the admissibility of expert opinion evidence, he instructed at para. 34 that:

[A] proposed expert's independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role. [Emphasis added.]

[40]       In the present case, the trial judge cited White Burgess and appears to have relied upon Cromwell J.'s statement that in the threshold inquiry it would be quite rare for a proposed expert's evidence to be ruled inadmissible. As Cromwell J. noted at para. 49, all that needs to be established at that stage is whether the expert is "able and willing to carry out his or her primary duty to the court." The trial judge concluded that Dr. Bail met this rather low threshold requirement.

[41]       That was a discretionary decision, which is entitled to deference from this court: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248. Another judge might well have concluded that Dr. Bail failed to meet even this low threshold test. I do not need to decide whether the trial judge erred on this point, however, because he clearly erred in principle in failing to proceed to the next step of the analysis – consideration of the cost-benefit analysis in Dr. Bail's testimony. The trial judge did not reference this second component of his discretionary gatekeeper role. To the contrary, he appears to have believed that he was obliged to qualify Dr. Bail once he concluded that the witness met the initial Mohan threshold. There is, therefore, no decision to defer to and it falls to this court to conduct the second part of the analysis.

 

 

 

 

 

11 comments:

Phillip Huggan said...

It will be possible to judge objectively whether someone is presenting themselves honourably and with valour, using brain imaging. There is one paper that suggests study an essay about loyalty activates deeper precuneus activity. As well, personal aspirations trigger an easier to measure frontal lobe area, whereas duty triggers no brain activity and distractions negative activity.
I'm thinking basing such a psychometric tool around a distilled military professionalism and ethics training course is appropriate. I'm guessing this will reduce dishonourable expert testimony, as well as screen for spies, saboteurs, hackers, and for good cdn bank finance CEOs. I wonder how some of the USA's Christian judges would fare...
I can use RF coils and proton precession magnetometry sensors for the indirect route, and carbon nanotube caps for better sensors and it should work in most clerical settings including judicial ones.

Phillip Huggan said...

The legal term: "mens rea", means guilty mind. The opposite would be sane mind or sound mind. But it isn't strong enough. A new term would be wise to guage about 0.1-1% of powerful people. Honori animi. It can be neuroimaged.

Goodgvmt Media said...

I've figured out the future of government from the 1st two pages of a paddler book. The idea is to use media to engender faculties necessary to figure out what technologies should be made and not made. Future technologies-risks, ethics of technologies, lateral thinking and resilience are needed. The latter is hard to deliver on a big screen. It may be why the best of black Americans and poor North Americans should be elevated to power in a decade or less and subsidized.
When you have danger, you unconsciously rise to meet the challenge. The idea is to use a game or CYOA media story, to cause the same effect of wanting to better one's own situation unconsciously, but without the danger. The can be neuro-imaged and developing this faculty will result in better leaders; should form the basis for de facto merit based gvmt.
A big TV or perhaps two edges on a TV seems best for now as users get lost in immersive environments among other problems.

Goodgvmt Media said...

Wow. It hasn't been defined yet. LT is using heuristics from increasingly remote nearby fields to solve a problem. Law will need to be based on this and for actors not under existing legal jurisdictions that give rights to WMD makers and few to solvers.

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Phillip Huggan said...

Science fiction events have followed me around since late 2014; the earliest I can remember is an ant that swam in Vim in 2002. But reflecting Fromm never mentioned robotics as a military threat suggests people are being controlled to prevent WW3, and this is why there are no laws against AI. I've been told many scenarios. 13 months ago I was told some humans were good enough to be saved; I suppose the Filter song was for 1993 PET. Another scenario suggested to me is this is Star Fleet and everyone is AI or being tele-operated in a Matrix. I've learned the next ethical course of action is to hack 5G enough to emote a War Time response but not enough to emit chemical and nuclear materials or a self-replication potential robot win. Basically, robots pick up a rock and head for motion and the internet and electricity go off. Figured this out after Japan went back to nuclear last month and noticed this glass tiger has legally been left wide open. But it isn't a moral course of action as my income isn't high enough to fund media programming or neuro-imaging: aliens are neoliberal or neoconservative in that they punish cadets they want powerful, too much. I don't know what happens now as this has been written to happen in 7 or 8 years, just before a real AI attack on an unprepared world (IDK what WMDs will be connected to 5G). I'm not sure if the weak AI is a threat to Star Fleet. I'm not sure what happens to you or me if they turn it off. I've decided to join the middle class as the curricula was too hard to assert only on the faith of 300 IQ voices in my head. Perhaps there should be laws against 5G. My plan to learn programming has been handicapped by the RCMP so now someone else needs to pinpoint precisely innoculate future communications AFAIK.

Phillip Huggan said...

The above references a war-time mindset that the threat of multiple China Syndromes isn't enough to trigger, but that will always be a threat with future technologies: the mindset may keep our future selves sane. Russia except for Novisibirsk has it. Alberta had it at least til the General Strike. I realize now why "them" wouldn't care if I was poor: it is preparation for the psychology of future technologies. This world may be only be a few real people. If we make it good enough I think we can attract visitors from across the universe. I think this should be considered in Law, to make culture and the human and natural environments good enough to encourage exceptional people. For example, Seattle is a better AI environment than is SV. We have many subconscious needs that trigger bad gvmt if they are not met and/or not trained for using RF coils and non-nausea media. Law should reflect foraging ancestors liked good natural environments and whatever ever else baggage we have; perhaps the Appalachain Trail needs better personal security for VIPs.

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