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Expert testimony

Law Times has two stories this week that relate to expert testimony or expert witnesses.

In one, the Ontario Divisional Court upheld the dismissal of a lawyer’s claim against a handwriting expert for defamation. In Deverett Law Offices v. Pitney, lawyer Michael Deverett’s firm brought a claim against a handwriting analyst who had done work for a former client.

The ruling confirms expert witnesses cannot be sued, say lawyers.

In another story, Law Times reports on how the Ontario Court of Appeal is being asked to clarify if any evidence by police officers who are testifying as experts can still be admitted if there is a finding the witness has a bias in favour of the prosecution. In R. v. Natsis, the judge determined that certain aspects of evidence from a police officer who was a technical traffic collision investigator could be admitted, even though “the defence . . . met its burden and established that there is a realistic concern that [the officer is] biased.”

Ultimately, the officer’s evidence was submitted, in part. “Expert opinion tendered by a party is a unique type of evidence. Although generally retained by one side to the litigation or the other, experts are expected to be neutral,” said the ruling by Justice Neil L. Kozloff.

“Their testimony is meant to assist the court and the trier of fact, not to bolster the theory of the case presented by one of the two sides. Their status as experts derives, in significant measure, from the assumption that they will offer the court objective opinions on which the court is entitled to rely.”

Both rulings remind lawyers of the importance of the role of the expert witness and their crucial role in the courtroom. Judges, too, play an important role in ensuring the duty of the expert witness to the court is fulfilled. In a time where court proceedings are all too often portrayed to be either needlessly adversarial, difficult to navigate or inhibiting access to justice, the chance for a judge to deftly navigate complexity around this type of testimony has never been more important.        


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