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Evidence - Expert Versus Judge. Guiste v. Law Society of Ontario
In Guiste v. Law Society of Ontario (Div Ct, 2026) the Divisional Court dismissed an appeal, this brought against several professional misconduct findings where: "a panel of the Hearing Division of the Law Society Tribunal found that the allegations were proven.[1] The Hearing Panel imposed a three-month suspension, and ordered that Mr. Guiste pay costs of $225,000 to the Law Society.[2] Mr. Guiste’s appeal to the Appeal Division of the Tribunal was dismissed."
The court considered the admissibility of expert evidence on domestic legal issues, here as it relates to determining "the standards of competence in the practice of criminal law":(b) Expert Evidence on Lawyers’ Standards of Competence
[130] It is well established that expert evidence on domestic law is rarely, if ever admissible: R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 40; Assn. of Charter Certified Accountants v. Canadian Institute of Chartered Accountants, 2016 FC 1076, 149 C.P.R. (4th) 272, at para. 29-34. Mr. Bergman was not asked to provide an opinion on matters of law, but about the standards of competence in the practice of criminal law, an area in which expert evidence is generally admissible: Gayle v. Cambridge Mercantile Corp., 2025 ONCA 612, at para. 10.
[131] It will usually be difficult if not impossible for an expert to provide an opinion on lawyers’ standards of competence without discussing questions of law, as knowledge of the law is part of what is expected of a reasonably competent lawyer. Because of this, “the line between admissible and inadmissible evidence often blurs” in such cases: Assn. of Chartered Certified Accountants, at para. 31. However, the distinction is an important one, as it is the admissibility of Mr. Bregman’s opinion on standards of practice, not questions of law, that is at issue. His knowledge of the latter subject is only relevant insofar as it informs an evaluation of his opinion of the former. . R. v. Case
In R. v. Case (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here considering when an expert witness is required or a judge can make the fact-finding:[12] To the extent that the appellants’ argument suggests that expert evidence was required to support the trial judge’s reliability findings, R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827 is squarely against it. As the Crown submits, trial judges deal with issues of intoxication and memory routinely, in sexual assault complaints and in numerous other contexts, and do so without the need for expert evidence. See e.g., R. v. B.W.W., 2017 ONSC 985; R. v. R.D., 2017 ONSC 1856, aff’d 2019 ONCA 132.
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