2/23/08 (CAN):
Be Cautious With 'Experts' Says Top Canadian Judge
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The public inquiry into the Dr Charles Smith debacle (see last month's edition of 'X-Pro News') has heard that courts tend to elevate experts to a higher level than ordinary witnesses and give them too free a rein.
Patrick Lesage, former chief justice of the Ontario Superior Court, told the inquiry "Unquestionably, we do cloak the expert, the opinion giver, with an authority that is very often not justified," He went on to say that he is loath to refer to anyone as an 'expert'.
"I refer to them as people who, because of their training and experience, were permitted to give an opinion. I think even using the word `expert' is already cloaking them with a great authority which maybe they ought not have."
The inquiry has heard that Dr Smith held himself out as an expert in pediatric forensics & pathology for years before it was discovered that he was not qualified to give evidence in these areas. The inquiry has heard that Smith would often stray outside of the field of pathology, in one instance opining that infants were more likely to die from Shaken Baby Syndrome if they came from a broken home, and where the mother's boyfriend got angry with the crying infant. He would also address the biomechanics of an infant's fatal fall, even though this was beyond his so-called expertise.
Lesage added that it was up to trial judges to keep such "roamers" in check. The judge should state "exactly what it is that they're going to be permitted to testify on, and the opinion to which they are going to be able to comment," he said. "And if they stray, I think you, as the judge, even a non-interventionist judge," is obliged to stop rambling experts in their tracks, he said. "Be it in front of the jury, all the better. It's a more telling admonition."
© X-Pro 2008
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