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Wednesday, May 6, 2015

The Expert witness in child protection - putting limits on

The role of expert witness can be quite powerful in courts. They can have a strong impact on how judges see information and they get an opportunity to frame the data. In child protection, they complete assessments such as parenting capacity (PCA), addiction, mental health and cognitive and risk.

Courts in Canada, have addressed the position of the expert witness in a leading case. The Supreme Court of Canada (SCC) in the case of Mohan noted that an expert must meet certain criteria. The United States has considered this in two leading cases, Frye and Daubert. 

In R. v. Mohan, the SCC identified four criteria for the admissibility of evidence:

  • It must be relevant 
  • necessary to assist the trier of fact
  • should not trigger any exclusionary rule
  • must be given be a properly qualified expert 
Careful readers will note similarity between the Daubert conclusions and Mohan.

Writing for the court which held this unanimously, then Justice Sopinka stated:

Expert evidence, to be necessary, must likely be outside the experience and knowledge of a judge or jury and must be assessed in light of its potential to distort the factfinding process. Necessity should not be judged by too strict a standard. The possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions. Experts, however, must not be permitted to usurp the functions of the trier of fact causing a trial to degenerate to a contest of experts.

In a just released decision, the SCC has gone further. Writing for a unanimous SCC decision, Justice Cromwell wrote:

The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. 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 Langlille Inman v Abbott and Haliburton Co., 2015 SCC 23)

This takes the role of expert further by insisting that the expert has an obligation to the court and the court is charged with ensuring that the expert fulfills that duty. For those who have made a living as “hired guns”, this decision is dangerous news. The highest Canadian court has made it clear that the expert has a primary duty and that duty is to the court.

The SCC goes on adopting an Ontario case, Abbe, stating:

As stated in Abbey, the test for admissibility of expert evidence is now two-fold.
First, the threshold: Mohan factors: relevance, necessity, absence of an exclusionary rule, and a properly qualified expert. At this point, the expert should also be able to acknowledge that she understands that she has a primary duty to the court to give fair, objective, and non-partisan evidence, and that she is willing and able to fulfill that role. Absent a challenge from the opposing party, an affirmative answer to this question will generally be sufficient to establish this threshold requirement.

Second step: The person challenging the ex-[pert (which will be rare) must show that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty.  It is not enough to simply allege that the expert has a relationship, interest, or connection to the litigation or to a party. A simple economic concern will likely not be enough, given the realities of modern litigation. However, if there is a concern such as : where the expert has a direct financial interest in the outcome of the litigation; a familial relationship with one of the parties; where the expert will likely incur professional liability is her opinion is not accepted by the court; or where the expert assumes the role of an advocate for a party, then this concern may be made out. The onus then shifts back to the side calling that expert to show why the concerns are not legitimate. (emphasis added.

This really does challenge the notion of the expert as an advocate for one side. The court is really challenging that role.

Experts need to be challenged in my view. I have appeared as an expert in about 150 cases. Thus, I speak from direct experience. An expert must bring to the court data, and an ability to interpret data, that the court is not in a position to do. In assessment work, an expert must also be able to address the standard against which clinical judgment has been made. How has the expert determined that the parent is or is not capable of meeting the needs of the child? Thus, the expert must be able to articulate the basis of the conclusions.

A colleague and I looked at the PCA process and concluded that the standard was poorly outlined. We argued a parent needs to be only good enough. If there is not an articulated standard, then the assessor is able to make one up. Most assessors are from in a privileged position in society by virtue of education, social class and perhaps quite often culture, race and gender. In other words, their social location is quite different from the client in the child protection system. In the absence of a standard, the assessor will draw from their own social location (whether consciously or not) to determine whether a parent should raise their children.

What these court decisions mean is that an expert in child protection should be challenged to determine if they have a clear and articulated understanding of the standards against which they have judged a parent. If they cannot, then I would argue that they have not met the criteria of an expert and should be challenged. Indeed, the court should, not accept someone who cannot do this. It is not a good use of scarce court time.

Choate, P. W & Engström, S. (2014). The ”good enough” parent: Implications for child protection. Child Care in Practice, Vol. 20 (No. 4) 368–382