Back To Burgess: The Impact of the White Burgess Expert Evidence Regime in Alberta Decisions

Abstract

Historically, the judicial treatment of expert evidence was viewed through the static lens of traditional evidential rules. Expert evidence was an exception to the opinion evidence rule, which deemed inadmissible testimonial evidence that usurped the function of the trier of fact by offering a ready-made conclusion. This exception for admissibility was a recognition that expert evidence may assist the trier in coming to a conclusion in areas of specialized knowledge and expertise. However, the potential prejudicial misuse of this powerful form of opinion evidence was underestimated. A culture of admissibility of expert evidence upon proof of education and knowledge became the norm turning potential prejudice into actual miscarriages of justice as exemplified in the Goudge Inquiry in 2008. Even so, it was not until 2015, when the Supreme Court of Canada released White Burgess Langille Inman v Abbott and Haliburton, that a clear step-by-step approach was developed on the admissibility and assessment of expert evidence. This decision, together with two other Supreme Court decisions on the issue in Sekhon and Bingley, changed the focus of the qualification exercise to ensure the expert understood their duty to assist the court as an independent, unbiased and impartial witness. This changed the role of the expert from an advocate to a non-partisan receptacle of knowledge. To maintain the new status quo, the Supreme Court embedded into the admissibility process a clear and continual gatekeeper function to regulate the scope of the expert’s evidence and to keep the interests of justice firmly in mind throughout the trial process. However, in this task the trial judge is not alone as this heightened vigilance is shared with all parties to an action. Although this newly fashioned test appears to be clearly drawn, the true worth of a legal principle can only be determined through its application. The purpose of this paper is to determine the impact and influence of the test on lower court decisions in criminal and civil matters, through an analysis of Alberta case law since the rendering of White Burgess. As part of this review, the paper will also highlight the future evolution and development of expert evidence issues and the effect these decisions will have in other areas of law.