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Evidence - Expert Opinion - Basics. R. v. Wong
In R. v. Wong (Ont CA, 2023) the Court of Appeal considers whether to admit expert evidence under the White Burgess doctrine:[60] In deciding whether to admit expert evidence, the judge below is to engage in a two-stage analysis. At the first stage, the court considers four factors: 1) relevance; 2) necessity; 3) the absence of an exclusionary rule; and 4) whether the expert is properly qualified. At the second stage, the judge is to balance the probative and prejudicial effects of admitting the evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 23.
[61] In White Burgess, at para. 42, Cromwell J. explained that the issue of bias is to be considered at both stages of the analysis.
[62] At the first stage, bias is relevant to the issue of whether the expert is properly qualified. In R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, this court also dealt with a challenge to the admissibility of evidence provided by Detective Backus on the basis of bias. At para. 39 of Mills, the court explained that, in deciding whether a proposed expert is properly qualified, a trial judge is to consider whether the proposed expert is:(a) impartial, in the sense that they give only an “objective assessment of the questions at hand”;
(b) independent, in the sense that their opinions result from an exercise of “independent judgment, uninfluenced by who has retained” them or the “outcome of the litigation”; and
(c) unbiased, in the sense that they do not “unfairly favour one party's position over another”. [63] In Mills, at para. 42, this court further explained the process a trial judge is to follow in deciding whether a proposed expert is properly qualified, including on the issue of bias:An assessment of whether the witness is a properly qualified expert must take into account the proposed witness' ability to understand and to fulfill an expert's duty to the court to provide impartial, independent and unbiased evidence: Abbey (2017), at para. 48; White Burgess, at para. 53. This is not a high threshold. Once the expert testifies to this effect, the burden shifts to the party opposing the admission of the evidence to show a “realistic concern” as to why the expert might not comply with that duty: White Burgess, at para. 48. If that realistic concern is shown, the burden shifts back to the party proffering the evidence to demonstrate on a balance of probabilities why the expert is a properly qualified expert. Expert evidence should only be excluded in “rare” and “very clear cases”, where the proposed expert is found to be unable or unwilling to provide “fair, objective and non-partisan evidence”: White Burgess, at para. 49; R. v. Natsis (2018), 140 O.R. (3d) 721, [2018] O.J. No. 2383, 2018 ONCA 425, at para. 11. [Emphasis added.] [64] In Mills, at para. 43, the court pointed out that “apparent bias” is not relevant to the issue of whether an expert is properly qualified. Rather, the expert must be actually biased to be disqualified. The question is “whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance”: White Burgess, at para. 50.
[65] At the second stage, the trial judge retains the residual discretion not to admit the evidence on the basis that its prejudicial effect will outweigh its probative effect. As explained in Mills, at para. 45:“[w]hile anything short of an expert's clear unwillingness or inability to meet his or her obligations should not lead to exclusion under the first stage of admissibility, the trial judge must still take into account any concerns regarding the expert's independence and impartiality at the second stage, weighing those concerns in the final equation.”
[66] Ultimately, even once expert opinion evidence is admitted, its probative value is “directly related to the amount and quality of admissible evidence on which it relies”: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 897. Furthermore, the burden remains on the Crown to “prove the statutory elements of dangerousness beyond a reasonable doubt”: Williams, at para. 53. . R. v. Sillars
In R. v. Sillars (Ont CA, 2022) the Court of Appeal considered when expert evidence is required or not:[74] In the face of these findings, was expert evidence as to the standard of care required?
[75] Expert evidence is admissible when it is necessary. To be necessary, the subject matter must be such that ordinary people are unlikely to form a correct judgment about it without guidance from an expert. In other words, it is outside the knowledge and experience of the trier of fact: R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, p. 23.
[76] The evidence here could be easily understood by lay people without the opinion of an expert. Both the owner of the cottage and one of the guests testified that it was too dangerous to go out on the water that day. It was obvious to them. It was obvious to the trial judge.
[77] Based on the trial judge’s findings, it is also plain and obvious that any lay person would come to the same conclusion. This court in R. v. Clare, 2013 ONCA 377 dealt with an appellant who had been driving a tractor in a dangerous manner. The court held that, in light of the trial judge’s findings, expert evidence was not necessary to establish the elements of the offence. At para. 10, Strathy J.A. (as he then was) said:In my view, this was a case in which the risks of the accused’s driving and the means of avoiding them were plain and obvious and did not call for expert evidence. [78] Here, the trial judge’s findings of fact lead to the inescapable conclusion that the appellant’s actions were a marked and substantial departure from the conduct of a reasonably prudent person and showed a wanton and reckless disregard for the life and safety of Thomas – a child who was owed a duty of care. . Tokarz v. Selwyn (Township)
In Tokarz v. Selwyn (Township) (Ont CA, 2022) the Court of Appeal considered when expert opinion evidence should be discounted:[63] The trial judge failed to give Mr. Pitre’s opinion the lesser weight it deserved given that it rested on unproven material facts: Marchand v. The Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.). . R. v. Oppong
In R. v. Oppong (Ont CA, 2021) the Court of Appeal considered factors for admitting expert evidence:[38] Trial judges have the responsibility to act as “gatekeepers” in deciding whether to admit any expert evidence, in determining its scope and in ensuring that the expert evidence remains within its proper bounds at trial. Depending on how the trial unfolds, an admissibility ruling may need to be revisited. In jury trials, the judge will need to provide appropriate instructions so that the jury understands the limits on the permitted uses of the expert evidence: Mohan, at p. 24.
[39] The Mohan framework involves a two-step approach to determining the admissibility of expert evidence. At the first, or threshold, step, the court considers the four criteria of (1) whether the expert is properly qualified; (2) whether the evidence is affected by an exclusionary rule (other than the opinion rule itself); (3) whether the evidence is logically relevant to issues in the proceeding; and, (4) whether the expert evidence is necessary. The second, or “gatekeeper” stage requires the judge to balance the potential risks and benefits of admitting the evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19, 22-24; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 43-44, 46-47; R. v. J.(J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28.
[40] Ontario courts are frequently called upon to apply the Mohan criteria to determine the admissibility and scope of expert evidence concerning gangs. As this court noted in R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 91, the case law is replete with the admission of gang evidence for the purpose of providing context or narrative, to establish animus or motive, to establish the accused’s state of mind or intention, or for other purposes.
[41] At the same time, the cases recognize the risks associated with the admission of expert evidence concerning gangs. The primary danger arising from the admission of any opinion evidence is that the jurors’ function as fact-finders might be usurped by that of the witness: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 53. A particular risk of expert evidence concerning gangs is the potential for “bad character” propensity reasoning. Bad character evidence itself is presumptively inadmissible unless the Crown can demonstrate that it is relevant to an issue in the case, and its probative value outweighs its prejudicial effects. The evidence is inadmissible if it serves only to show that an accused is the type of person likely to have committed the offence: R. v. B., (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at pp. 699, 731; Phan, at paras. 90-91; R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 65.
[42] Trial judges decide on the need for expert evidence and weigh the probative value of the evidence against its prejudicial effect in the context of the live issues at trial, with the advantage of hearing the evidence in issue, observing the jury and being able to appreciate the dynamics of the particular trial: D.(D.), at paras. 12-13. Ultimately the admissibility of any expert opinion evidence is highly case-specific: R. v. Gager, 2020 ONCA 274, at para. 27, leave to appeal to S.C.C. refused, 39477 (April 22, 2021).
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[64] Impartiality and lack of bias are part of the threshold requirements for admissibility, in determining whether an expert is properly qualified. Exclusion at the threshold stage should occur only in very clear cases, where the proposed expert is unable or unwilling to provide the court with fair, objective and non‑partisan evidence. Alleged partiality and bias are considered again at the gatekeeping stage in weighing probative value (which includes relevance, necessity, reliability and absence of bias) against the dangers associated with expert evidence. Context is important; both the extent of the expert’s alleged bias and the nature of the proposed evidence are relevant: White Burgess, at paras. 49, 53-54; R. v. Natsis, 2018 ONCA 425, 140 O.R. (3d) 721, at para. 11; Mills, at para. 45. . Connor Homes v. Director
In Connor Homes v. Director (Div Ct, 2021) the Divisional Court commented on expert evidence, here in administrative proceedings:[47] Expert testimony may be necessary to provide opinions in regard to matters that are likely to be beyond the fact-finder’s knowledge or experience.[23] This Court stated in M.R. v. D.E. that s. 15 of the SPPA provides “wide powers concerning the admission of evidence, including experts” and that while the factors in Mohan are relevant, tribunals are not bound by them.[24]
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[52] The oft-cited Mohan test for the admission of expert evidence depends on the application of the following threshold criteria:(a) relevance;
(b) necessity in assisting the trier of fact;
(c) the absence of any exclusionary rule; and
(d) a properly qualified expert.[27] Mohan also underlined the important role of trial judges (or as in the case here, the tribunal) in assessing whether otherwise admissible expert evidence should be excluded because its probative value is overborne by its prejudicial effect-a residual discretion to exclude evidence based on a cost-benefit analysis.[28]
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[54] The determination of whether to admit expert evidence under the test in Mohan[30], as modified by White Burgess Langille Inman v. Abbott and Haliburton Co.[31], is highly fact dependent. As recently explained by the Court of Appeal in R. v. Abdullahi[32]:The application of the Mohan requirements in any proceeding is case-specific. In each case, the trial judge determines issues of relevance and necessity within the factual matrix of the trial in which he or she is presiding. The inquiry is very much a function of the other evidence and issues in the case being tried: R. v. Shafia, 2016 ONCA 812, [2016] O.J. No. 5627, at para. 229. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 23-24. . R. v. Gauthier
In R. v. Gauthier (Ont CA, 2021) the Court of Appeal considered modern basics of expert evidence:[22] An expert’s independence and impartiality goes to both admissibility and weight: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 45. There is a two-step test to determining the admissibility of expert opinion evidence: White Burgess, at paras. 22-24. The first step involves an inquiry into whether the evidence meets the threshold requirements for admissibility: White Burgess, at para. 23; R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. The second step is a gatekeeping step, where the judge must balance “the potential risks and benefits of admitting the evidence”: White Burgess, at para. 24.
[23] An expert witness owes a duty to the court to be fair, objective and non-partisan: White Burgess, at para. 46. In order to meet the threshold requirement, the expert must be able and willing to carry out her duty to the court. The 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”: White Burgess, at para. 49. Concerns about an expert’s independence and impartiality are also relevant at the gatekeeping stage: White Burgess, at para. 54.
[24] A trial judge’s gatekeeping role, however, does not end when the admissibility inquiry is over. It is critical for a trial judge to be alive to the continuing gatekeeper role throughout the trial and to be conscious of what is and is not evidence properly before the court: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 722, at para. 46. As part of the ongoing gatekeeper role, the trial judge must ensure that an expert’s testimony “stays within the proper bounds of his or her expertise”: Sekhon, at para. 47. . R. v. Herlichka
In R. v. Herlichka (Ont CA, 2020) the Court of Appeal set out the basics of the admission of expert testimony:[80] There is a two-stage framework for the admission of expert opinion evidence. At the threshold stage, four questions are asked: (i) relevance; (ii) necessity; (iii) the absence of an exclusionary rule; and (iv) the need for a properly qualified expert: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19; R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48.[2]
[81] White Burgess, decided shortly after the ruling in this case, determined that at the first admissibility stage, and as part of determining whether the expert is properly qualified, the court must take into account the proposed expert’s ability to understand and to fulfill his or her duty to the court to provide impartial, independent and unbiased evidence: White Burgess, at para. 53; Abbey, at para. 48. The appellant emphasizes that expert evidence should only be excluded on that basis in “rare” and “very clear cases”: White Burgess, at para. 49; Mills, at para. 42.
[82] At the second admissibility stage – the gatekeeper stage – the trial judge exercises a residual discretion to exclude the evidence after having considered whether the benefits of admitting it outweigh its potential risks: Mills, at para. 44; Abbey, at para. 49. The trial judge must continue to take into account any concerns respecting the expert’s independence and impartiality at the gatekeeping stage: White Burgess, at para. 54; Mills, at para. 45. Accordingly, the expert’s impartiality, independence and willingness to provide an unbiased opinion is considered at both of the admissibility stages. . R. v. Biddersingh
In R. v. Biddersingh (Ont CA, 2020) the Court of Appeal summarized the current state of the admission of expert evidence:[37] In determining whether expert evidence is admissible, the trial judge must engage in the two-stage test adopted by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. At the first stage, the trial judge must determine whether the threshold requirements of admissibility are met: a) the evidence must be logically relevant; b) it must be necessary to assist the trier of fact; c) it must not be subject to any exclusionary rule; d) the expert must be properly qualified, including being willing and able to fulfil their duty to the court; and e) for any opinions based on novel science or science used for a novel purpose, the underlying science must be reliable: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 47-48; White Burgess, at para. 23. If these requirements are met, the trial judge must advance to the second stage, in which they are required to fulfil a “gatekeeping role”: Abbey, at paras. 48, 53; White Burgess, at paras. 20, 24. As the gatekeeper, the trial judge must determine whether the benefits of the evidence outweigh its potential risks, considering such factors as legal relevance, necessity, reliability, and absence of bias: Abbey, at para. 48; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28. . Imeson v. Maryvale (Maryvale Adolescent and Family Services)
In Imeson v. Maryvale (Maryvale Adolescent and Family Services) (Ont CA, 2018) the Court of Appeal considers the use and admissibility of evidence from an expert under the combined Mohan/White Burgess doctrine:[80] There are two steps in assessing the admissibility of expert evidence under the Mohan/White Burgess framework: White Burgess, at paras. 23-24.
[81] The first step in determining admissibility is for the court to assess whether the proposed expert evidence meets the threshold requirements that the evidence is (i) logically relevant; (ii) necessary to assist the trier of fact; (iii) not subject to any other exclusionary rule; and (iv) proffered by a properly qualified expert who is willing and able to provide evidence that is impartial, independent, and unbiased: see White Burgess, at paras. 23, 53; Mohan, pp. 20-25.[2]
[82] If the proponent of the evidence establishes the threshold for admissibility, the second discretionary gatekeeping step is for the trial judge to determine whether the potential benefits of admitting the evidence outweigh its potential risks to the trial process: White Burgess, at para. 24. . R v M.C.
In this useful case of R v M.C. (Ont CA, 2014) the Court of Appeal took the oppourtunity to set out basic principles of the opinion exclusion rule:The Opinion Rule
[67] The law of evidence distinguishes between fact and opinion. The distinction seems more and ultimately one of convenience rather than of objective reality. All sensory data is mediated by our powers of perception, assimilation and expression. But the distinction remains and is expressed in the rule that generally, but not universally, excludes evidence of opinion.
[68] Among the exceptions to the opinion rule are the opinions of experts. Duly qualified experts may testify about subjects that are within their field of expertise, logically relevant to a material issue in the proceedings, and outside the experience and knowledge of the trier of fact: Mohan, at p. 20.
[69] Experts combine information accumulated from their own work and experience, marry it with evidence adduced through exhibits, admissions and the testimony of other witnesses in the proceedings, and express an opinion about a factual inference that should be drawn from the accumulated materials: Abbey, at para. 71. These opinions are evaluated by the trier of fact, like any other evidence admitted in the proceedings, in determining whether the allegations contained in the indictment have been proven beyond a reasonable doubt.
[70] The factual premise or construct to which the expert applies his or her expertise must be established, however, by evidence that is otherwise properly admissible in the proceedings. Mere reliance by the expert on a state of facts as the basis for his or her opinion does not amount to evidence much less proof of those facts. For example, a psychiatrist proffers an opinion about criminal responsibility based on an account of events provided to him or her by an accused. The account relied upon must be established by other admissible evidence: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 46 (Abbey ’82); R. v. Boucher, 2005 SCC 72 (CanLII), 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 31; and R. v. D. (D.), 2000 SCC 43 (CanLII), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 55. Where the factual premise of the expert’s opinion is not established by otherwise admissible evidence, the opinion is entitled to less, in some cases, to no weight: Abbey ’82, at p. 46; and R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 893.
[71] Deciding the admissibility of expert opinion evidence involves two steps. The first requires a determination of whether the conditions precedent to admissibility have been met. The second, only undertaken on satisfaction of the first, consists of a cost-benefit analysis that asks whether the benefits of receiving the evidence to a correct decision exceed the costs to the litigation process of admitting the evidence: Abbey, at para. 76.
[72] The criteria applicable to the first step in the admissibility inquiry are:i. relevance;
ii. necessity;
iii. absence of an exclusionary rule; and
iv. a properly qualified expert. Mohan, at p. 20; and Abbey, at paras. 75 and 80.
[73] Among the Mohan criteria, two are of particular importance in this case: the absence of an exclusionary rule, and a properly qualified expert.
[74] The absence of an exclusionary rule refers to an exclusionary rule other than the opinion rule itself: Abbey, at para. 80. For example, expert opinion evidence of an accused’s disposition must not contravene the bad character rule.
[75] Whether a proposed witness is a properly qualified expert about subject-matter that is properly the subject of expert opinion evidence is determined on a voir dire after counsel proffering the evidence has defined the nature and scope of the proposed opinion: Abbey, at paras. 62-63; R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at pp. 242-244; and R. v. McIntosh 1997 CanLII 3862 (ON CA), (1997), 35 O.R. (3d) 97 (C.A.), at p. 104. The trial judge’s task extends beyond deciding whether the proposed expert is qualified to proffer an opinion. The judge should also determine the nature and scope of the expert evidence and ensure that the expert’s reach does not exceed his or her grasp or extend beyond boundaries established by the trial judge: Abbey, at para. 62; R. v. Sekhon, 2014 SCC 15 (CanLII), 2014 SCC 15, at paras. 46-47; and Marquard, at pp. 242-244.
[76] An expert may refer to and be cross-examined upon authoritative works in the field. But without express adoption of the content by the expert, the opinions expressed in the works cannot become expert evidence for the trier of fact to consider in reaching their decision: Marquard, at p. 251. A review, even an extensive review by an expert of literature in a related field does not, without more, permit the expert to proffer an opinion on a subject outside the area of the expert’s field of expertise: Mathisen, at para. 126.
[77] Evidence that meets the Mohan criteria will not necessarily be received and available for consideration by the trier of fact. At the second stage, the trial judge exercises a “gatekeeper” function. The judge decides whether the expert opinion evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to that same process that may ensue from the introduction of that very evidence: Abbey, at para. 76. It is only where the benefits gained by the introduction of the evidence predominate over the costs associated with its introduction that the evidence will be admitted.
[78] To determine the “benefits” associated with the introduction of expert opinion evidence, the judge considers the probative value of the evidence, the significance of and the issue to which the evidence is relevant. Potential probative value includes an assessment of the reliability of the evidence, not merely of its subject-matter, but also the expert’s methodology, expertise and objectivity: Abbey, at para. 87.
[79] On the “cost” side, the trial judge considers the consumption of time, prejudice and confusion. The trier of fact may not be adequately equipped to effectively and critically assess the evidence. The underlying material may be complex, the witness’ jargon impenetrable, and the evidence resistant to effective cross-examination: Abbey, at para. 90. . R v Vassel
In R v Vassel (Ont CA, 2018) the Court of Appeal considers the exclusionary 'opinion rule', of which expert evidence is an exception:[85] The admissibility rule said to be applicable here is the opinion rule. Like its siblings, hearsay and character, the opinion rule is exclusionary by nature. It insists that witnesses give evidence of facts, not make statements of opinions or inferences drawn from those facts. It follows, at least as a general rule, that evidence of a witness’s opinion is not admissible: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182, at para. 14. The most convincing rationale for the rule is that these ready-formed inferences offered by the witness are unhelpful to the trier of fact and might be misleading: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 836. See also White Burgess, at para. 14.
[86] As with other admissibility rules, the opinion rule is not unyielding. Not all opinion evidence is excluded. We recognize that, so far as matters that require special knowledge or skill are concerned, triers of fact, whether judges or jurors, are not necessarily equipped to draw true inferences from facts stated by witnesses. Assistance is necessary. And so it is that we permit witnesses to state their opinions about these subjects, provided the witnesses are shown to be experts in them: White Burgess, at para. 15; R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 42.
[87] Where the opinion rule is put forward as the ground upon which evidence proposed for admission should be excluded, the judge embarks upon a two-step inquiry into admissibility: White Burgess, at para. 22; see also, R. v. Abbey, 2009 ONCA 624 (CanLII), 97 O.R. (3d) 330, at para. 76, leave to appeal refused, [2010] S.C.C.A. No. 125 (“Abbey ‘09”).
[88] At the first step of the admissibility inquiry, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors:
i. relevance;
ii. necessity;
iii. the absence of an exclusionary rule; and
iv. a properly qualified expert.
See White Burgess, at para. 23; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 20; R. v. Bingley, 2017 SCC 12 (CanLII), [2017] 1 S.C.R. 170, at paras. 14-15.
[89] At this first step, the relevance factor refers to logical relevance: White Burgess, at para. 23; Abbey ‘09, at para. 84. The necessity requirement endeavours to ensure that the potential of expert opinion evidence to distort the fact-finding process is not lightly tolerated. White Burgess, at para. 21; R. v. D.D., 2000 SCC 43 (CanLII), [2000] 2 S.C.R. 275, at para. 46 and 57. As a result, the opinion evidence is unnecessary if on the facts established by other evidence the trier of fact can reach their own conclusion about the issue to which the proposed opinion evidence is directed without that opinion: Sekhon, at para. 45. What is required is that the opinion proposed for admission provide information that is likely to be outside the experience and knowledge of a jury: Mohan, at p. 23. Mere relevance or helpfulness is not enough: R. v. D.D., at para. 46.
[90] Under Mohan, a duly qualified expert is a witness who by study or experience has acquired special or peculiar knowledge of a subject about which a party proposes the witness will testify: Mohan, at p. 25. As we have seen, the extent of knowledge of the proposed expert must exceed the knowledge and experience of the trier of fact about the same subject: Bingley, at para. 22.
[91] It is the responsibility of the party who seeks to elicit expert opinion evidence from a proposed (or actual) witness to qualify the witness as an expert in the subject-matter about which the opinion is to be elicited: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. It is the obligation of opposing counsel to object where appropriate and the task of the trial judge to ensure that the expert stays within the scope of his or her expertise: Marquard, at p. 244; Abbey ‘09, at para. 62; Sekhon, at paras. 46-47.
[92] At the second or gatekeeping step, the trial judge must balance the risks and benefits of admitting the evidence, thereby to determine whether the proposed evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to that same trial process that may flow from the admission of the expert evidence: White Burgess, at para. 24; Abbey ‘09, at para. 76. Relevance, necessity, and reliability, as well as the expert’s independence and impartiality, continue to play a role in weighing the overall competing considerations in admitting the evidence: White Burgess, at para. 54.
[93] Sometimes in giving evidence at trial, an expert may give opinions that extend beyond the subjects on which the expert has been qualified to give evidence. To the extent that an expert does so, the unqualified opinions are to be disregarded by the trier of fact. Where the trier of fact is a jury, the trial judge should instruct them accordingly: Marquard, at p. 244; Sekhon, at para. 48.
[94] A final point concerns anecdotal evidence, which sometimes enters the record of trial proceedings during the testimony of an expert. Anecdotal evidence is testimony that does not speak to the facts of the case but reasons from the witness’s prior experience to the probability of a particular result or occurrence in the case at hand. Anecdotal evidence is not legally relevant. Nor is it necessary. It lacks probative value. It is inherently prejudicial and tends to shift the onus of proof to an accused: Sekhon, at paras. 41, 49 and 50.
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