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