How important is it for an expert witness to be independent, impartial and unbiased?
Q: How important is it for an expert witness to be independent, impartial and unbiased?
A: The Supreme Court of Canada recently released an important decision that are of interest to members of the public as well as the profession.
In WBLI v. Abbott and Haliburton, the Court ruled that a trial Judge may choose to rule the evidence of a proposed expert inadmissible if the witness won’t certify that he or she will be independent, objective and impartial.
Even with such certification (or something of an equivalent confirmation by the witness), the trial judge will retain the discretion to rule the evidence inadmissible if it appears that the witness is so lacking in independence, or so biased as to becoming an advocate, that there’d be no benefit for the court to hear the evidence given the time it would require for the evidence to be heard and then challenged by the opposing party.
The decision is important in that previously, issues of bias or partiality were generally dealt with by the court giving the evidence less weight when deciding the case. Now, it’s clear that the expert has a duty to the court to provide evidence that will truly be helpful for all concerned.
One side note of interest to criminal lawyers: While this decision is applicable in all proceedings in which an expert may be called upon to testify, the contrast between the civil and criminal court process is rather hard to fathom. Many provinces in Canada, including Ontario, have Rules of Civil Procedure requiring the expert to provide confirmation that he or she understands the duties. Yet there’s no equivalent for a criminal trial, notwithstanding the fact that liberty, as opposed to compensation or remedies, is what’s at stake. That’s something which may be addressed one of these days.