“It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert’s opinion as to the appropriate factual inference. Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently, expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities: Paciocco & Stuesser at pp. 184, 193; S. Casey Hill et al., McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2009), at para. 12:30.10.

The increased reliance on expert opinion evidence by both the Crown and defence in criminal matters is evident upon even a cursory review of the reported cases. Sometimes it seems that a deluge of experts has descended on the criminal courts ready to offer definitive opinions to explain almost anything. Expert evidence is particularly prevalent where inferences must be drawn from a wide variety of human behaviour: see, for example, R. v. McIntosh (1997), 35 O.R. (3d) 97 (C.A.), at pp. 101-103, leave to appeal to S.C.C. refused R. v. McCarthy, [1998] 1 S.C.R. xii [leave sought by second appellant in McIntosh, Mr. McCarthy]; David M. Paciocco, “Coping With Expert Evidence About Human Behaviour” (1999) 25 Queen’s L.J. 305, at pp. 307-308; S. Casey Hill et al. at para. 12:30.10; R. v. Olscamp (1994), 95 C.C.C. (3d) 466 (Ont. Ct. (Gen. Div.)), approved in R. v. Lance (1998), 130 C.C.C. (3d) 438 (Ont. C.A.), at para. 24; Ontario, The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (Toronto: Queen’s Printer, 1998), at pp. 311-24. As Moldaver J.A. put it in R. v. Clark (2004), 69 O.R. (3d) 321 (C.A.), at para. 107, a case involving the proposed expert evidence of a criminal profiler:

Combined, these two concerns [giving expert evidence more weight than it deserves and accepting expert evidence without subjecting it to the scrutiny it requires] raise the spectre of trial by expert as opposed to trial by jury. That is something that must be avoided at all costs. The problem is not a new one but in today’s day and age, with proliferation of expert evidence, it poses a constant threat. Vigilance is required to ensure that expert witnesses like Detective Inspector Lines are not allowed to hijack the trial and usurp the function of the jury. [Emphasis added.]

Despite justifiable misgivings, expert opinion evidence is, of necessity, a mainstay in the litigation process. Put bluntly, many cases, including very serious criminal cases, could not be tried without expert opinion evidence. The judicial challenge is to properly control the admissibility of expert opinion evidence, the manner in which it is presented to the jury and the use that the jury makes of that evidence…

“It is not surprising that Dr. Totten’s opinion could not pass scientific muster. While his research, and hence his opinion, could be regarded as scientific in the very broad sense of that word, as used in McIntosh, Dr. Totten did not pretend to employ the scientific method and did not depend on adherence to that methodology for the validity of his conclusions. As his opinion was not the product of scientific inquiry, its reliability did not rest on its scientific validity. Dr. Totten’s opinion flowed from his specialized knowledge gained through extensive research, years of clinical work and his familiarity with the relevant academic literature. It was unhelpful to assess Dr. Totten’s evidence against factors that were entirely foreign to his methodology. As Professors Sales and Shuman put it in their text, Experts in Court: Reconciling Law, Science, and Professional Knowledge, at pp. 74-75: ‘[f]or non-scientific expert testimony, scientific validity is an oxymoron.’

Scientific validity is not a condition precedent to the admissibility of expert opinion evidence. Most expert evidence routinely heard and acted upon in the courts cannot be scientifically validated. For example, psychiatrists testify to the existence of various mental states, doctors testify as to the cause of an injury or death, accident reconstructionists testify to the location or cause of an accident, economists or rehabilitation specialists testify to future employment prospects and future care costs, fire marshals testify about the cause of a fire, professionals from a wide variety of fields testify as to the operative standard of care in their profession or the cause of a particular event. Like Dr. Totten, these experts do not support their opinions by reference to error rates, random samplings or the replication of test results. Rather, they refer to specialized knowledge gained through experience and specialized training in the relevant field. To test the reliability of the opinion of these experts and Dr. Totten using reliability factors referable to scientific validity is to attempt to place the proverbial square peg into the round hole.”

As the decision of the Court of Appeal had the effect of overturning an acquittal, under the Criminal Code the accused now has the right to appeal directly to the Supreme Court of Canada. That Court will now be charged with the important responsibility of delineating the proper scope of expert evidence in the litigation process in Canada.

The stakes involved could not be higher. On the one hand, the exclusion of evidence can result in the collapse of serious criminal cases. On the other hand, the rights guaranteed under the Charter must be enforced if they are to have meaning. It is left to the judgment of our Courts to strike the proper balance in individual cases.

The starting point is the language of section 24(2). It mandates the exclusion of evidence if, having regard to all the circumstances, the admission of it would bring the administration of justice into disrepute. In trying to give meaning to this broad and general language, the Supreme Court of Canada explained the purpose of section of 24(2) and the factors that judges must consider in deciding whether to exclude evidence obtained in violation of Charter rights:

“The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

The phrase “bring the administration of justice into disrepute” must be understood in the long term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.”

In its June 2009 decision in R. v. Godin, 2009 SCC 26, the Supreme Court of Canada reinstated a stay of proceedings where a charge of sexual assault had taken 30 months to get to trial and where the Crown had failed to provide an adequate explanation for the delay. The Court disagreed with the decision of the Ontario Court of Appeal that the accused had waived part of the delay by not being available for a date proposed for a preliminary hearing. The Court made the following important statements in that regard:

“Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.”

“To hold that the delay clock stops as soon as a single available date is offered to the defence and is not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”

The trial judge had earlier instructed the jury that, to convict him of murder, the jury must find that Pickton “actively participated in the killing of the victim” but that it was “not necessary that you find that Mr. Pickton acted alone.” Faced with the question from the jury, the trial judge reiterated these instructions and corrected another part of his instructions to clarify that Pickton had to have “actively participated in the killings.” The Crown, sensing that its theory had not been accepted, was happy to go along with this.

In a 2-1 decision, a majority of the Court of Appeal agreed with the trial judge’s approach and dismissed the appeal. The dissenting judge said the trial judge failed to properly instruct the jury on alternative theories of liability, resulting in a miscarriage of justice warranting a new trial.

Without question, the prospect of a second trial to relive these terrible events was not relished by anyone. The dissenting judge acknowledged this. However, if a serious error of law was made which compromised the fairness of the trial, a new trial would be the inevitable result. Under the Criminal Code, where a judge of a Court of Appeal dissents on an issue of law, an appeal may be presented to the Supreme Court of Canada as of right. That is what happened here. The Pickton appeal will soon be dealt with by our nation’s highest Court.

The question at issue on the appeal was whether the action should be heard in the Ontario courts or whether Michigan was the more appropriate forum for the resolution of the dispute. A Superior Court judge had ruled that the action should be heard in Michigan, as there were a number of witnesses to the accident who are resident there, and Michigan law would govern the action. The Court of Appeal reversed the decision and held that the action should proceed in Ontario.

The Court noted that the number of witnesses for each side were evenly divided, but that if the action were tried in Michigan there would be the possibility of inconsistent verdicts given that the claim by the plaintiff against her own insurer would have to proceed in Ontario. As a result, the overriding goals of efficiency and justice which underlie the system of conflicts of law mandated that the action proceed in Ontario rather than Michigan.

While the Court did not have to consider the issue, it can be said that statutory provisions in Ontario make the forum of the dispute of lesser importance in car accident cases that occur in North America. Section 243(1) of the Insurance Act provides that automobile insurance provided for under the Act applies to the use or operation of a vehicle in Canada or the United States. Section 252(1) of the Act provides that in the case of liability arising out of the use or operation of a vehicle in Canada or the United States, the insurer is liable up to the minimum limits prescribed for in that province, territory or jurisdiction if those limits are higher than the limits in the policy, and the insured appoints the insurer to appear and defend an action in any province or territory of Canada or any jurisdiction in the United States. Section 57(1) of the Statutory Accident Benefits Schedule provides that the insurer is required to pay accident benefits properly payable if the accident occurred in another province or territory of Canada or a jurisdiction in the United States.

In light of these provisions, it can readily be seen that, insofar as the rights and obligations of the insured person and the insurer are concerned, there is little difference if a car accident occurs in Ontario, Canada or Ontario, California.

When an issue of ineffective assistance of counsel is raised on appeal, the justice system must find a way to fairly deal with the complaint. In May 2000, the Court of Appeal, with the assistance of representatives from the Criminal Lawyers Association, the Department of Justice and the Ministry of the Attorney General, enacted a Protocol for the presentation of appeals where there is an allegation of ineffective assistance of counsel.

This important effort has a number of hallmarks: (a) before making a claim of ineffective assistance of counsel, the appeal lawyer must satisfy him or herself by appropriate inquiry, that there is a factual basis for the allegation apart from the instructions of the client; (b) the appeal lawyer must provide trial counsel with the opportunity to respond to the allegation; (c) trial counsel is obliged to provide their entire file to the appeal lawyer; (d) the appeal is case managed by a judge of the Court of Appeal; (e) the Crown Attorney is entitled to review the file of trial counsel, except for those portions over which solicitor and client privilege is claimed; (f) if solicitor and client privilege is claimed, the appeal lawyer must provide an inventory of such documents to the Crown Attorney; (g) disputes over privilege will be decided by the case management judge; (h) either party can compel trial counsel to attend for examination on the issues involved in the appeal.

This creative Protocol ensures that the interests of all parties to the appeal are adequately protected. In the end however, the burden of proof is on the accused person to demonstrate to the appellate Court that ineffective assistance of trial counsel caused a miscarriage of justice.

In a thoughtful decision, Justice David Brown of the Ontario Superior Court of Justice had occasion to consider this argument in a recent case called Leduc v. Roman, 2009 CanLII 6838. Mr. Leduc had been involved in a car accident in February 2004. He brought an action claiming that his enjoyment of life and ability to engage in sports had been adversely affected. The defence lawyer conducted a search and learned that Mr. Leduc maintained a Facebook account. The profile available to the public showed only his name and picture. Access to the site was restricted to “friends” of Mr. Leduc. The defence brought a motion for production of information on the site. A Master of the Superior Court dismissed the motion, characterizing it as a “fishing expedition.”

Justice Brown heard the resulting appeal. He started by outlining some basic facts. Facebook is a social media website with 70 million users as of June 2008. More than 14 million photos are uploaded daily. Users can create a wall on which friends share messages with each other. Justice Brown quoted from an earlier decision on the important issue of privacy: “I have concluded that any invasion of privacy is minimal and is outweighed by the defendant’s need to have the photographs in order to assess the claim. The plaintiff cannot have a serious expectation of privacy given that 366 people have been granted access to the private site.” Justice Brown went on to articulate a rule for future cases: “Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.”

Mr. Leduc was ordered to deliver a further affidavit of documents and the defence lawyer was permitted to cross-examine on the affidavit so as to discover precisely which of the contents on the private site were relevant to the issues in the action. Justice Brown concluded by making the following observation: “To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

With these observations in hand, it seems to me that parties to a lawsuit should indeed now beware of Facebook.

Mr. Keays did not have a good day at the Supreme Court. Concluding that the trial judge had made serious errors in his assessment of Honda’s conduct, the Court reduced Mr. Keays’s damages to the equivalent of 15 months salary and the punitive damage award was set aside.

Much of the commentary hailed the decision as a major victory for employers in Canada. I would beg to differ. The Court has long recognized that employers owe a duty of good faith to employees to be candid, truthful and sensitive to employees at the time of termination. The failure to do so was to be compensated by an increase in the notice period to which the employee would otherwise be entitled. It is true that the Court in Keays eliminated that arbitrary increase. In its place however, employees who suffer mental distress as a result of improper conduct by an employer at the time of termination can now receive an award for such damages. This represents a real breakthrough in the law and overturns at least 100 years of legal authority against such awards. It is now the responsibility of trial and appellate Courts in Canada to flesh out the parameters of the decision. In my view, employers would do well to treat employees with utmost fairness. Anything less raises the possibility that employees will suffer foreseeable damages for mental distress.