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The Importance of Recognizing Unreliable Expert Evidence

Every week, Bell Temple LLP selects and reports on interesting and relevant decisions from the Ontario Superior Court of Justice, Ontario Court of Appeal, and Supreme Court of Canada.

This week’s case reports are written by Anastasia Branopolski

 

R v Hason 2024 ONCA 369 – excluding expert evidence using prior negative treatment of their testimony

In R. v. Hason, 2024 ONCA 369, the Court of Appeal for Ontario recently ordered a new hearing for the sentencing of a convicted dangerous offender under the Criminal Code. This decision illustrates the significant role the reliability and credibility of expert evidence has in legal proceedings and highlighting how new evidence of expert unreliability can fundamentally alter case outcomes. It will be interesting to see how R v Hason is used in the civil context to exclude expert evidence when it is believed to be bias or unreliable for the Court’s consideration.

Background

The trial judge designated the appellant as a dangerous offender and imposed an indeterminate prison sentence. The trial judge’s sentencing was heavily influenced by the expert testimony of psychiatrist Dr. Scott Woodside.

After the conviction, the revelation of Dr. Woodside’s compromised reliability came to light in the subsequent decision of R. v. Nettleton. Dr. Woodside’s testimony in Nettleton revealed that he employed a careless practice.[1] He admitted that his practice in dangerous offender cases was to treat the analysis section of his reports as boilerplate and that he reviewed those sections carelessly.[2] Dr. Woodside implemented  a copy and paste approach into his practice where he would take substantive portions of previous reports concerning another person and insert them into subsequent reports.[3] As a result, his report incorrectly diagnosed Mr. Nettleton and mischaracterized his index offence.[4] When confronted with these errors, Dr. Woodside refused to reconsider his opinion.[5] Justice Laura Bid, trial judge in Nettleton, excluded his evidence on the finding that he was biased and his errors raised serious concerns about the reliability of his evidence.[6]

Court of Appeal Decision

Dr. Woodside’s Nettleton testimony and Justice Bird’s findings concerning it were highlighted by the Court in Hason as a new issue necessitating a fresh penalty hearing, due to the risk of a miscarriage of justice if this matter remained unaddressed. [7]  It was determined that these findings revealed a pattern of conduct indicative of a careless practice, differing significantly from case-specific errors such as extensive copy-pasting, which contributed to the Nettleton case. [8]  Additionally, the Court recognized that an expert’s testimony in a separate proceeding may be admissible for the purpose of impeaching that expert’s reliability. The combined weight of the testimony, findings, and record renders the trial judge’s imposition of an indeterminate sentence unreasonable, suggesting that the judge would likely have rejected Dr. Woodside’s evidence had he been aware of the psychiatrist’s careless practices. [9] Consequently, the Court concluded a new hearing on the penalty was warranted.

Takeaways

The issues surrounding expert testimony in r. Hason highlight how crucial the reliability and credibility of expert witnesses are in influencing judicial decisions. This is directly applicable to civil cases, such as those involving personal injury and property claims, where expert opinions are often utilized to provide essential insights into complex issues like medical conditions or property valuations.

The Court’s decision underscores the likely shift towards increased judicial scrutiny of expert reports that utilize boilerplate language. While avoiding boilerplate language is essential for accuracy and credibility, experts may face challenges in balancing the need for detailed analysis with the demands of efficiency.

Furthermore, the decision affirmed “that an expert’s testimony in another proceeding may be admissible if it is relevant to impeach the expert’s reliability”.[10] This emphasizes the importance of conducting  thorough due diligence on an expert’s history and past treatment in court proceedings.

It will be interesting to see how counsel, especially in the personal injury litigation context, where “boilerplate” sections of expert medical reports are common, incorporate the principles established in R. v Hason into their litigation and cross-examination strategies.

 

 

[1] R. v. Hason, 2024 ONCA 369 at para. 90

[2] Ibid, at para 87

[3] Ibid, at para 91

[4] Ibid, at para 91

[5] Ibid, at para 92

[6]Ibid, at para 93

[7] Ibid, at para 98

[8] Ibid, at para 110

[9] Ibid, at para 120

[10] Ibid, at para 111 – citing R. v. Abbey 2017 ONCA 640

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