R. v Soni, 2016 ABCA 231
[12] At the time of the oral argument in this trial the decision in White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 at para. 49, [2015] 2 SCR 182 was under reserve. That decision subsequently confirmed the principles surrounding the admissibility of expert evidence:
• Admissibility of expert opinion evidence is governed by the four part test in R. v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9: (a) relevance, (b) necessity in assisting the trier of fact, (c) absence of an exclusionary rule, and (d) a properly qualified expert;
• An expert has a duty to the Court to be impartial, independent, and unbiased;
• A lack of objectivity can go to the admissibility of the expert evidence, but more commonly it will merely go to weight;
• The objectivity of the expert should be examined under the final part of the Mohan test: “a properly qualified expert”;
• The threshold test for admissibility is “not particularly onerous, and it will be “quite rare” that expert evidence will be completely inadmissible.
Once the threshold for admissibility has been met, the trial judge must still take into consideration the expert’s independence and impartiality in weighing the evidence.
[13] As noted, White Burgess confirmed that in “quite rare” and “very clear” cases the evidence of an expert who lacks objectivity is inadmissible, not just of limited weight:
49 This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. 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 his or her primary duty to the court. . . . Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only 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 or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. (emphasis added)
The appellant argues on appeal, notwithstanding his trial counsel’s concession, that Detective Theuser’s expert evidence falls within the category of evidence that should not have been admitted at all.
[14] White Burgess arose in a professional negligence claim against auditors. The shareholders hired another accounting firm to perform some work, during which it was alleged that deficiencies were found in the work of the defendant accountants. When the defendant accountants brought a summary dismissal application, the shareholders retained another member of the same new accounting firm to provide an expert opinion. The defendant accountants applied to strike out that affidavit. The Supreme Court of Canada confirmed the importance of objectivity in an expert witness, that in “quite rare cases” the evidence might be inadmissible, but insufficient objectivity will usually go to weight. The Court then gave some examples at para. 49:
• The mere existence of an interest or a connection between the witness and the party is not determinative; it is the nature and extent of the interest or connection that matters;
• A mere employment relationship is generally insufficient, compared to, for example, a direct financial interest in the outcome of the litigation;
• An unwillingness or inability to provide the court with objective evidence will result in exclusion, as when the expert assumes the role of an advocate.
It was not objectionable that the initial investigative work by the new accounting firm was the source of the claim. It was still possible for that same firm to give an objective expert opinion. Additionally, the fact that the expert had relied on some of the background work done by other accountants in her firm did not disqualify the expert.
[15] Counsel in this case were aware that White Burgess was under reserve, because it was referred to during argument. White Burgess did not create an entirely new rule of admissibility, because defence counsel acknowledged “a lot of case law” that “in some circumstances” a lack of objectivity might result in inadmissibility, not just reduced weight (supra, para. 9). The concession of admissibility of the expert evidence was made despite the knowledge of that case law. A new trial is not justified every time the Supreme Court of Canada restates a rule of evidence where the trial judge took into consideration the objectives and principles of the new statement of the rule: R. v Russell, 2000 SCC 55 at paras. 23-4, [2000] 2 SCR 731; R. v Starr, 2000 SCC 40 at para. 237, [2000] 2 SCR 144; R. v Campeau, 2015 ABCA 210 at para. 7, 18 Alta LR (6th) 180.
[16] The admissibility of the expert evidence was clearly conceded. When counsel said “what’s been elicited will clearly go to weight. . . .”, that was a direct response to the judge’s question about “if you are challenging this proposed expert witness as an expert based on the information that you have elicited or whether you are prepared to accept him as an expert and that the issues you have raised would go to weight”. When counsel conceded it only went to weight the trial judge confirmed there were no objections to admissibility based on “playing multiple roles in a police department”, which was clearly a reference back to “the information you have elicited” about Detective Theuser’s role in the investigation. This discussion was not about areas of expertise (which were in fact admitted) but directly about whether the witness’s lack of objectivity made his evidence completely inadmissible. White Burgess does not compel a trial judge to perform any independent analysis about the admissibility of expert evidence when the parties concede that it is admissible. The trial judge likely has an overriding ability to exclude the evidence notwithstanding the admission, but failing to do so or to perform the analysis is not an error. The resulting concession by counsel that the expert evidence was admissible should prevail on appeal: R. v Lomage (1991), 1991 CanLII 7228 (ON CA), 2 OR (3d) 621 at paras. 17-8, 44 OAC 131 (CA); R. v Webster, 2016 BCCA 218 at paras. 33-6.
[17] In the present prosecution, the trial judge was alive to the limited weight to be given to an expert opinion where there is a lack of objectivity, and she specifically looked for evidence that would corroborate that opinion. There was a significant amount of evidence for the trial judge to rely on, beyond the evidence of Detective Theuser. The trial proceeded based on an agreed statement of facts, supplemented by the testimony of several lay witnesses who were present at the scene of the accident. The driver of the Lexus and the appellant’s passenger testified, but they turned out to have little memory of anything relevant. The agreed statement of facts incorporated a dimensioned diagram of the intersection prepared by Constable Morrison, under the supervision of Constable Desmules, which showed the final resting place of the three vehicles, various skid marks, and other relevant measurements. The defence called two of the appellant’s friends, who testified that the Mercedes did not make much noise when it accelerated. The appellant did not testify.
[18] The trial judge’s reasons not only recognized the importance of objectivity in experts, but actually overstated the rule. To illustrate, Detective Theuser’s evidence was challenged because he is employed by the Edmonton Police Service. It was acknowledged that sometimes the Edmonton Police Service will retain outside engineers and experts to conduct accident reconstructions. An employment relationship, however, is not a disqualifying factor for an expert: R. v Tang, 2015 ONCA 470 at para. 6. While the law has always noted the importance of objectivity in experts, there is no rule that expert witnesses cannot be investigators, and investigators cannot be experts. The case law discloses, for example, that forensic fire experts are often involved in investigating the source of the fire, and later providing expert evidence on that source at trial.
[19] The vast majority of experts will have some sort of retainer with the party calling them, whether as an employee or a consultant. As stated in White Burgess at para. 32:
Experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert's independence, impartiality and freedom from bias.
The receipt of remuneration is at best one factor to be considered in weighing the expert evidence. Whether a casual consultant is more or less independent than a permanent employee can be a matter of debate, especially in the case of a uniformed police officer who has the protection of his collective agreement and Part 5 of the Police Act, RSA 2000, c. P-17. Large portions of Detective Theuser’s opinions were derived from mathematical calculations based on the independently prepared dimensioned diagram of the intersection, and his entire report was peer reviewed by his supervisor, Sergeant Lamont, also an accident reconstructionist. There was no reason to disqualify him as an expert merely because he was an employee of the Edmonton Police Service.
[20] At trial, the appellant’s counsel also argued that an investigator could not provide expert evidence because he would “have an interest directly or indirectly in the case”. Just because an expert might have an intellectual or professional interest in having his opinion accepted by the court does not create the kind of disqualifying interest referred to in White Burgess. If that was the case, no expert (whether employee or consultant) would ever be objective enough to be qualified.
[21] As noted, the appellant objected to Detective Theuser being a part of the investigative team. He interviewed some of the witnesses, and told witness Nguyen he thought she was withholding information. He interviewed the appellant and told him he thought the appellant was guilty. White Burgess demonstrates that involvement in an underlying investigation is not disqualifying. The expert accountant had relied on background investigative work done by other members of her firm, which had allegedly uncovered the negligence of the defendants. Expert witnesses often obtain the background facts from other witnesses, but it is not objectionable that they might collect some of those facts themselves. So long as the expert is still able to maintain an open mind and provide an independent, objective opinion, participation in or reliance on an investigation is not disqualifying.
[22] An expert does not lose objectivity merely because he forms an opinion about the case; an expert report containing no opinion has no probative value. An expert can and should properly challenge information which he believes to be inaccurate or unreliable; if he believes that a witness is withholding information or otherwise attempting to mislead him, there is nothing wrong with him confronting the witness or otherwise attempting to verify the information. As a police officer and “person in authority”, Detective Theuser had a particular role to play when interviewing the appellant. It was not inappropriate for him to disclose his preliminary views on guilt to the appellant before the interview, if only to make it clear to the appellant what jeopardy he faced. The interview with the appellant occurred 7 months after the accident, and there is no indication that Detective Theuser prematurely jumped to his conclusion on the appellant’s culpability, or that his mind was closed to any alternatives as the investigation progressed.
[23] At trial the appellant’s position was that the expert’s report was admissible, and that any concerns about objectivity went only to weight. The appellant should not be allowed to retract that admission on appeal: R. v S.G.T., 2010 SCC 20 at para. 36, [2010] 1 SCR 688; R. v Webster at paras. 33-6.The record discloses that the trial judge was alive to the need to weigh the expert’s evidence in light of his objectivity, even without the benefit of the reasoning in White Burgess. She indicated that she was giving only “diminished” weight to Detective Theuser’s evidence, a finding that should be taken at face value: R. v O’Brien, 2011 SCC 29 at paras. 17-8, [2011] 2 SCR 485. The trial judge may, in fact, have overemphasized the perceived problems with the expert’s evidence. There is nothing on this record to suggest that the expert’s objectivity was so lacking that his evidence should have been ruled completely inadmissible. There was ample other evidence supporting the conviction, and the appellant has not demonstrated any error that would have affected the outcome, or any miscarriage of justice. This ground of appeal must be dismissed.
