Reliability through Reform?
Edited by Paul Roberts and Michael Stockdale
Chapter 10: A new Canadian paradigm? Judicial gatekeeping and the reliability of expert evidence
Beginning with its decision in R v Mohan, the Supreme Court of Canada has actively redefined judicial responsibilities regarding expert evidence. This chapter adapts Thomas Kuhn’s concept of shifting paradigms to illustrate the emergence of a new Canadian approach to expert evidence. The chapter elucidates the test set out in the leading authority of White Burgess (and related cases) and illustrates how the relevant principles are being interpreted and applied by senior Canadian courts. Having documented the centrality of reliability and expert independence to the new Canadian paradigm, and against the backdrop of a growing emphasis on judicial gatekeeping responsibilities, it is argued that Canadian trial judges and lawyers presently receive too little institutional support for their respective new roles. Inadequate judicial engagement with the principles of fundamental reliability and a pattern of appellate reversal suggest that trial judges have not yet developed the skills necessary to adjudicate contests about the reliability of forensic science. Thus, the ‘new paradigm’ remains incompletely realised.
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