A Supreme Vaccine Against Expert Opinionitis
[Under research and development. At clinical trial stage for a potential application by public interest organization for a declaration that Mohan, as it abrogates judicial authority to decide ultimate questions of mixed law and fact to unaccountable experts and permits the unauthorized practice of law, is unconstitutional under s. 52 of the Constitution Act, 1982.]
[Under research and development. At clinical trial stage for a potential application by public interest organization for a declaration that Mohan, as it abrogates judicial authority to decide ultimate questions of mixed law and fact to unaccountable experts and permits the unauthorized practice of law, is unconstitutional under s. 52 of the Constitution Act, 1982.]
Overview of Position
. . .
2. Over the past generation, while the rules on admissibility of expert opinion evidence have generally become more rigorous, there remains a foundational question which has not received direct guidance by this Honourable Court, namely, “Does the proper scope of expert evidence extend beyond the fact-finding process and a question of fact to include opinion on a question of mixed law and fact?”
3. Currently, jurisprudence on expert evidence makes little distinction between opinion evidence on issues of fact and issues of mixed law and fact. The admission process generally is to direct nearly all proposed expert evidence to the Mohan – White Burgess gate and see what will percolate through, regardless of whether it is opinion evidence from a former judge to advise a sitting judge on what law and interpretation to apply to the facts of the case, written “in a form that would easily translate into reasons for judgment” (Walsh v. BDO Dunwoody LLP, 2013, BCSC 1463 (CanLII), paras. 13-16, 64-65). It is as if proposed expert evidence of mixed law and fact is equally eligible to reach the gate as any expert evidence of fact. Consequently, much expert evidence of mixed law and fact has been routinely admitted below in different areas of law.
4. R. v. Fisher, [1961] S.C.R. 535 remains the most direct, if conclusory, guidance by this Court on the issue. In excluding opinion evidence of mixed law and fact, the full and unanimous Court were “all in substantial agreement” with the reasons of the majority of a five-judge panel of Ontario Court of Appeal that “[w]here the opinion tendered, involves what is a mixed question of law and fact, the opinion is not admissible” (at p. 538). Despite this direct statement, jurisprudence below continues to contradict Fisher to purportedly follow Mohan for the proposition that there is no longer a general rule barring opinion evidence on the “ultimate issue”. Mohan did not directly cite Fisher nor directly discuss expert evidence of mixed law and fact. This Court has yet to address expert evidence on an issue of mixed law and fact since Fisher was decided over 60 years ago, or to reconcile Mohan with Fisher on the “ultimate issue”.
5. It is the respectful positions of this applicant that opinion evidence of mixed law and fact is inherently beyond the fact-finding process and is therefore beyond the proper scope of expert evidence, whether in examination in-chief or in cross examination.
6. Fisher remains good law to exclude opinion evidence of mixed law and fact, while the Mohan - White Burgess framework may harmoniously govern only opinion evidence of fact. The current jurisprudence which admits opinion evidence of mixed law and fact should also be reviewed for its adverse impact on the Canadian constitutional order and the rule of law.
. . .
Inconsistency in the jurisprudence on the scope of expert evidence
17. The nature of a question of mixed law and fact has been explained earlier by this Court: “questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.” [Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748.] “Questions of mixed fact and law involve applying a legal standard to a set of facts … On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts.” [Housen v. Nikolaisen, 2002 SCC 33 (CanLII).]
18. In Mohan, the Court was addressing disputed opinion evidence on a question of fact, namely whether Dr. Mohan’s disposition fit a certain character profile. The Court, in effect, summarized the development in the jurisprudence on expert evidence on questions of fact, when it stated, obiter in respect of evidence of mixed law and fact, that there is no longer a general rule barring opinion evidence on the “ultimate issue”. The Court did not expressly cite Fisher, an earlier decision from this Court, and more importantly, did not engage in any discussion on evidence of mixed law and fact.
19. In Fisher, on the other hand, while dealing with evidence of certain capacity of an accused which was also a question of fact, this Court adopted the following explicit restriction against opinion of mixed law and fact from the Ontario Court of Appeal [R. v. Fisher, 1961 CanLII 38 (ONCA), paras. 52-53]:
[52] Where the opinion tendered, involves what is a mixed question of law and fact, the opinion is not admissible. Thus, a medical man may not be allowed in terms to give his opinion that an accused was a criminal sexual psychopath, for inherent in that status is a difficult legal concept […].
[53] […] The question of appellant’s capacity, of course, was for the jury, as was the question of his actual intent. These are questions of fact and not questions of mixed law and fact. […]
20. Guidance from this Court appears much needed to address this apparent contradiction, if any, between Fisher and Mohan. The jurisprudence below purportedly applies Mohan as to effectively overrule Fisher and directs nearly all proposed expert evidence to the Mohan-White Burgess framework where much evidence of mixed law and fact is routinely admitted.
. . .
Inconsistency with the constitutional order and the rule of law
22. It is respectfully submitted that the admission of expert evidence on issues of mixed law and fact undermines the Canadian constitutional order and the rule of law in serious ways.
23. The province of the jury is not usurped but enlarged, as its attributes are expanded. Ordinarily, the jury must take legal instructions and guidance only from the judge. But with such expert evidence, the jury has an enlarged opportunity or power to hear and consider legal opinions from the expert. Indeed, it is more than just legal opinions, but legal decisions by the expert on how the law is applied to the facts, dressed as mere opinion evidence of an independent and impartial expert.
24. The power of the expert is dramatically expanded. Their power exceeds the power of the judge in a trial in many ways, including (a) while the expert can, the judge cannot tell the jury what outcome to select, or what the Court’s opinion or decision would be if the Court were to decide the dispute; (b) while the expert is practically exempt from providing written legal analysis on the underlying questions of law for appellate review, the judge must provide proportional and sufficient reasons; and (c) on appellate review, the expert enjoys greater deference than the judge because firstly, the expert’s legal opinion is paradoxically deemed an issue of fact; and secondly, any legal analysis of underlying questions of law are further insulated behind a tolerated absence[1] of expert analysis.
25. The role of the judiciary is usurped. In our constitutional order, it is the primary role of the judiciary to interpret and apply the law to the cases brought before it: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, paras. 50, 59. Saved for specific and properly delegated statutory powers to inferior tribunals, the judiciary has exclusive power and responsibility to decide the cases before it.
26. There is no apparent constitutional or legislative authority for the judiciary to effectively institute, de facto, an inferior tribunal where experts are permitted to apply the law to the facts, and decide ultimate issues of mixed law and fact, without statutory enactment, although with a full right of appeal de novo to the judge at the trial.
27. The judiciary appears to risk “an abdication of judicial responsibility”[2] if they were to consider or rely on the expert’s legal opinion or legal advice in discharging its constitutionally independent duty to decide the cases before the court.
28. The expert usurps the role of the legal profession and appears to engage in the unauthorized practice of law with immunity. The expert engages in the trade of legal opinions they happen to have without any accountability to any Law Society for the protection of the public. Even when experts have been caught at trial for flawed expert evidence, errors and omissions in their legal opinions, and certain other misconduct unbecoming of an expert, their disciplinary record of prior adverse judicial comments are scraped clean for their next performance before a fresh new jury.[3]
[1] For example, see Bruff-Murphy, para. 47; Pucci, ONCA, para. 12.
[2] Saadati v. Moorhead, 2017 SCC 28 (CanLII), para. 22.
[3] Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII), para. 32: prior adverse judicial comments are not a proper subject for cross-examination.
. . .
2. Over the past generation, while the rules on admissibility of expert opinion evidence have generally become more rigorous, there remains a foundational question which has not received direct guidance by this Honourable Court, namely, “Does the proper scope of expert evidence extend beyond the fact-finding process and a question of fact to include opinion on a question of mixed law and fact?”
3. Currently, jurisprudence on expert evidence makes little distinction between opinion evidence on issues of fact and issues of mixed law and fact. The admission process generally is to direct nearly all proposed expert evidence to the Mohan – White Burgess gate and see what will percolate through, regardless of whether it is opinion evidence from a former judge to advise a sitting judge on what law and interpretation to apply to the facts of the case, written “in a form that would easily translate into reasons for judgment” (Walsh v. BDO Dunwoody LLP, 2013, BCSC 1463 (CanLII), paras. 13-16, 64-65). It is as if proposed expert evidence of mixed law and fact is equally eligible to reach the gate as any expert evidence of fact. Consequently, much expert evidence of mixed law and fact has been routinely admitted below in different areas of law.
4. R. v. Fisher, [1961] S.C.R. 535 remains the most direct, if conclusory, guidance by this Court on the issue. In excluding opinion evidence of mixed law and fact, the full and unanimous Court were “all in substantial agreement” with the reasons of the majority of a five-judge panel of Ontario Court of Appeal that “[w]here the opinion tendered, involves what is a mixed question of law and fact, the opinion is not admissible” (at p. 538). Despite this direct statement, jurisprudence below continues to contradict Fisher to purportedly follow Mohan for the proposition that there is no longer a general rule barring opinion evidence on the “ultimate issue”. Mohan did not directly cite Fisher nor directly discuss expert evidence of mixed law and fact. This Court has yet to address expert evidence on an issue of mixed law and fact since Fisher was decided over 60 years ago, or to reconcile Mohan with Fisher on the “ultimate issue”.
5. It is the respectful positions of this applicant that opinion evidence of mixed law and fact is inherently beyond the fact-finding process and is therefore beyond the proper scope of expert evidence, whether in examination in-chief or in cross examination.
6. Fisher remains good law to exclude opinion evidence of mixed law and fact, while the Mohan - White Burgess framework may harmoniously govern only opinion evidence of fact. The current jurisprudence which admits opinion evidence of mixed law and fact should also be reviewed for its adverse impact on the Canadian constitutional order and the rule of law.
. . .
Inconsistency in the jurisprudence on the scope of expert evidence
17. The nature of a question of mixed law and fact has been explained earlier by this Court: “questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.” [Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748.] “Questions of mixed fact and law involve applying a legal standard to a set of facts … On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts.” [Housen v. Nikolaisen, 2002 SCC 33 (CanLII).]
18. In Mohan, the Court was addressing disputed opinion evidence on a question of fact, namely whether Dr. Mohan’s disposition fit a certain character profile. The Court, in effect, summarized the development in the jurisprudence on expert evidence on questions of fact, when it stated, obiter in respect of evidence of mixed law and fact, that there is no longer a general rule barring opinion evidence on the “ultimate issue”. The Court did not expressly cite Fisher, an earlier decision from this Court, and more importantly, did not engage in any discussion on evidence of mixed law and fact.
19. In Fisher, on the other hand, while dealing with evidence of certain capacity of an accused which was also a question of fact, this Court adopted the following explicit restriction against opinion of mixed law and fact from the Ontario Court of Appeal [R. v. Fisher, 1961 CanLII 38 (ONCA), paras. 52-53]:
[52] Where the opinion tendered, involves what is a mixed question of law and fact, the opinion is not admissible. Thus, a medical man may not be allowed in terms to give his opinion that an accused was a criminal sexual psychopath, for inherent in that status is a difficult legal concept […].
[53] […] The question of appellant’s capacity, of course, was for the jury, as was the question of his actual intent. These are questions of fact and not questions of mixed law and fact. […]
20. Guidance from this Court appears much needed to address this apparent contradiction, if any, between Fisher and Mohan. The jurisprudence below purportedly applies Mohan as to effectively overrule Fisher and directs nearly all proposed expert evidence to the Mohan-White Burgess framework where much evidence of mixed law and fact is routinely admitted.
. . .
Inconsistency with the constitutional order and the rule of law
22. It is respectfully submitted that the admission of expert evidence on issues of mixed law and fact undermines the Canadian constitutional order and the rule of law in serious ways.
23. The province of the jury is not usurped but enlarged, as its attributes are expanded. Ordinarily, the jury must take legal instructions and guidance only from the judge. But with such expert evidence, the jury has an enlarged opportunity or power to hear and consider legal opinions from the expert. Indeed, it is more than just legal opinions, but legal decisions by the expert on how the law is applied to the facts, dressed as mere opinion evidence of an independent and impartial expert.
24. The power of the expert is dramatically expanded. Their power exceeds the power of the judge in a trial in many ways, including (a) while the expert can, the judge cannot tell the jury what outcome to select, or what the Court’s opinion or decision would be if the Court were to decide the dispute; (b) while the expert is practically exempt from providing written legal analysis on the underlying questions of law for appellate review, the judge must provide proportional and sufficient reasons; and (c) on appellate review, the expert enjoys greater deference than the judge because firstly, the expert’s legal opinion is paradoxically deemed an issue of fact; and secondly, any legal analysis of underlying questions of law are further insulated behind a tolerated absence[1] of expert analysis.
25. The role of the judiciary is usurped. In our constitutional order, it is the primary role of the judiciary to interpret and apply the law to the cases brought before it: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, paras. 50, 59. Saved for specific and properly delegated statutory powers to inferior tribunals, the judiciary has exclusive power and responsibility to decide the cases before it.
26. There is no apparent constitutional or legislative authority for the judiciary to effectively institute, de facto, an inferior tribunal where experts are permitted to apply the law to the facts, and decide ultimate issues of mixed law and fact, without statutory enactment, although with a full right of appeal de novo to the judge at the trial.
27. The judiciary appears to risk “an abdication of judicial responsibility”[2] if they were to consider or rely on the expert’s legal opinion or legal advice in discharging its constitutionally independent duty to decide the cases before the court.
28. The expert usurps the role of the legal profession and appears to engage in the unauthorized practice of law with immunity. The expert engages in the trade of legal opinions they happen to have without any accountability to any Law Society for the protection of the public. Even when experts have been caught at trial for flawed expert evidence, errors and omissions in their legal opinions, and certain other misconduct unbecoming of an expert, their disciplinary record of prior adverse judicial comments are scraped clean for their next performance before a fresh new jury.[3]
[1] For example, see Bruff-Murphy, para. 47; Pucci, ONCA, para. 12.
[2] Saadati v. Moorhead, 2017 SCC 28 (CanLII), para. 22.
[3] Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII), para. 32: prior adverse judicial comments are not a proper subject for cross-examination.