The expert witness’s duty of impartiality in Canada
| Author | Chris D. L. Hunt,Lorne Neudorf |
| Published date | 01 January 2016 |
| Date | 01 January 2016 |
| DOI | http://doi.org/10.1177/1365712715613479 |
| Subject Matter | Case Note |
Case Note
The expert witness’s duty of
impartiality in Canada: A
comment on White Burgess
Langille Inman vAbbott and
Haliburton Co.
Chris D. L. Hunt
Faculty of Law, Thompson Rivers University, Canada
Lorne Neudorf
Faculty of Law, Thompson Rivers University, Canada
Abstract
In this case note, the authors review a recent decision of the Supreme Court of Canada in
which the Court tightened the admissibility requirements of expert witnesses. The Supreme
Court confirmed that expert witnesses owe a special duty of impartiality at common law to
provide ‘fair, objective and non-partisan assistance’ to the trier of fact. On the question of
admissibility, the Supreme Court adopted an approach broadly consistent with England by
imposing a threshold eligibility requirement for the admission of expert evidence. An expert
will be qualified to testify only if he or she is aware of and willing to carry out their duty of
impartiality to the court. In addition, the trier of fact continues to act as a gatekeeper by
assessing the probative value of the proposed expert’s evidence and weighing it against the
potential for prejudice. Only where the probative value exceeds the potential for prejudice
will it be admitted. If the evidence of an expert witness is admitted, less serious concerns
about the impartiality of the expert witness can inform the weight accorded to the evi-
dence. The authors conclude that the Supreme Court’s decision is a welcome development
in Canadian law as it establishes a clear test designed to better safeguard the integrity of the
trial process.
Keywords
expert, witness, bias, duty, impartiality, exclusion
Corresponding author:
Chris D. L. Hunt, Faculty of Law, Thompson Rivers University, Kamloops, BC V2C 0C8, Canada.
E-mail: mark.coen@ucd.ie
The International Journalof
Evidence & Proof
2016, Vol. 20(1) 72–77
ªThe Author(s) 2015
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DOI: 10.1177/1365712715613479
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