The Court of Appeal for Ontario recently released its decision in R. v. Hason.1 The decision is noteworthy because the Court held that an expert's opinion could not be safely relied upon because of criticisms levied against the same expert in an unrelated case.
Despite the criminal context of this appeal, this decision contains relevant takeaways for civil litigators, particularly those engaged in expert-heavy matters. This decision also demonstrates how the Court can take up an issue on its own initiative — a rather unusual occurrence — and the accompanying efforts made by the Court to ensure procedural fairness was maintained.
Background
This appeal arose from a designation and sentence imposed under the Criminal Code's dangerous offender regime. In these proceedings, psychiatric evidence plays a central role.
After the hearing of the appeal, the Court independently learned of an unrelated case — R. v. Nettleton — whose only connection with the case at bar was the identity of the expert psychiatrist. In the course of his testimony in Nettleton, the expert gave "concerning" evidence.2 He admitted that he approached the analysis section of his report as "boilerplate" and made it his practice to copy and paste central, substantive portions of his opinion from previous reports.3 The expert admitted that he would not carefully review his work and, when confronted with the errors contained in his report, refused to reconsider his opinion.4 As a result, the trial judge in Nettleton found that the expert was biased and unreliable, and excluded his evidence.5 Nettleton predated the trial judge's decision in Hason, and so could not have been addressed by the trial judge at first instance.
Procedural Fairness: A Fresh Issue Raised on Appeal by the Court
It is relatively rare for an appellate court, on its own initiative and after the oral hearing of the appeal has concluded, to raise a new issue and invite further submissions from counsel. However, where appellate courts become aware of new issues throughout the appeal process, they have discretion to raise them.6 On occasion, this might occur when, in the time between the hearing of the appeal and the Court's decision, the Supreme Court of Canada releases a decision that might impact the issues in the appeal.
Here, the Court of Appeal identified that the same expert had testified in another, unrelated case, and was found to be unreliable. The Court was concerned by certain "red flags" in the expert's testimony, which risked a miscarriage of justice in the appeal before it. In these unusual circumstances, the Court was required to — and in fact, did — pay close attention to procedural fairness. It notified the parties of the concern regarding the expert's evidence and invited written submissions on the new issue.7 The Court also considered whether the record was sufficient to resolve the issue, and concluded that it was.8
Reliability of Expert Evidence: The Relevance of Testimony and Judicial Findings in Another Proceeding
The parties took the position that the findings made in Nettleton have no bearing on the case before the Court. But the Court disagreed, and determined it was under an obligation to consider this new issue in light of its potential impact on the sentence imposed on the appellant.9 In coming to this decision, the Court emphasized the significance of psychiatric expert evidence in dangerous offender proceedings.10
The Court acknowledged that generalized evidence of, and judicial findings regarding, an expert's incompetence concerning unrelated issues in other cases has "little to no relevance". However, in this case, the expert's evidence in Nettleton demonstrated a "specific pattern of conduct", namely, a "careless practice" that is distinct from "case-specific errors like extensive copy-pasting".11 The Court also confirmed that "[a]n expert's testimony in another proceeding may be admissible if it is relevant to impeach that expert's reliability".12
In the result, and in light of the risk of a miscarriage of justice in the context of this appeal, the Court set aside the sentence and ordered a new hearing. The Court held that if the trial judge had known about the expert's "careless practice", he may well not have relied on this expert's evidence in imposing the sentence that he did.13 Accordingly, a new hearing was required.
Key Takeaways For Civil Litigators
- The Court of Appeal affirmed that an expert's testimony in another case can be admissible to impeach the same expert's testimony in a later (even unrelated) case.14
- If an expert demonstrates a pattern of careless practice — even in another case — this may have negative repercussions on their reliability. The Court suggests that a specific pattern of conduct is required, and that case-specific errors are less relevant (if relevant at all).
- There are both offensive and defensive implications for the use of expert evidence moving forward. This decision is a reminder of the importance of thorough due diligence in reviewing an expert's history and past work, including in other proceedings. This hold true for all experts, whether retained by one's client or by the other side.
- This case offers an interesting discussion of the Court's power to raise an issue on its own initiative, and the procedural requirements of doing so.15
Case Information
R. v. Hason, 2024 ONCA 369
Docket: C66197
Date: May 7, 2024
Footnotes
1. R. v. Hason, 2024 ONCA 369 [Hason].
2. Hason, supra note 1 at para. 87.
3. Hason, supra note 1 at paras. 87 and 91; R v. Nettleton, 2023 ONSC 3390 [Nettleton] at para. 64(vi).
4. Hason, supra note 1 at para. 92.
5. Hason, supra note 1 at para. 93.
6. Hason, supra note 1 at para. 95.
7. Hason, supra note 1 at para. 105.
8. Hason, supra note 1 at para. 97.
9. Hason, supra note 1 at para. 87.
10. Hason, supra note 1 at para. 101; and Nettleton, supra note 3 at para. 64(vii).
11. Hason, supra note 1 at para. 110.
12. Hason, supra note 1 at para. 111.
13. Hason, supra note 1 at para. 88.
14. Hason, supra note 1 at para. 111.
15. Hason, supra note 1 at paras. 95-105.
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