Sunday, February 24, 2008

Experts, Judges and All That

On Friday, February 22, 2008 the Smith Inquiry (properly, the Inquiry into Pediatric Forensic Pathology in Ontario or the Goudge Commission) heard testimony from a panel of judge's, ex-judges and academics who testified about the difficulty of dealing with experts and the necessity of increased skepticism about the various experts that are trotted out from time to time by the Crown to prove their cases. These experts have a generally fatal effect to most defences as they come cloaked in an air of authority and definitiveness that is hard to overcome. Judges hearing cases alone sometimes are able to set aside the infallibility of the expert but juries are ill-equipped without careful and thorough guidance from the defence to overcome the effect of the Crown merely calling this evidence.

All of this has been compounded by the effect of a Supreme Court of Canada ruling called Mohan which has largely eliminated the possibility of excluding an expert from testifying outright. As long as the Crown (or defence for that matter) can show that the proposed witness has some experience, skill or qualification that may render him better qualified than an ordinary person to comment on some relevant matter, then the Mohan decision means that the courts will let that person testify. The Supreme Court of Canada judges in their wisdom decided that the frailties of an expert's testimony are all better dealt with as a matter of "weight" in the final balancing that a judge or jury must carry out in deciding whether or not to convict.

The problem with this approach is that expert testimony is rarely simple. First there is the question of what constitutes well-established science or knowledge, what is more controversial and what is more in the nature of out there speculation. if the jury consisted of a panel of experts in the field that may be something they could sort out but for the most part if an expert says " this is what the science says" then as far as they know that is that. At best a defendant can try to fight back with another expert but that brings up a range of issues including (1) the ability of defence counsel to recognize the problem, (2) the costs involved in finding a responsive expert; and (3) the costs involved in bringing forth this evidence.

Second, while experts are called in specific areas of expertise -- say biology -- they cannot resist the temptation to "roam" (to use the words of the witnesses in Smith Inquiry). I experienced an example of this in a lengthy environmental prosecution I defended a few years ago. The Crown called a series of experts who essentially said that the loss of gravel from a spawning ground would cause damage to the area's ability to support a salmon population -- this was fair evidence in the field of biology. The problem was that the damage had not occurred in the spawning ground but instead had occurred upstream. The biologists could not resist saying that the digging of gravel upstream would cause a loss of gravel in the relevant spawning ground -- something that had nothing to do with biology but was more a matter of engineering or the exotically named field of geography known as "fluvial geomorphology". The biologists had roamed into engineering -- a field they new nothing about and which in fact they had some fundamentally wrongheaded notions about (something which, fortunately I managed to convince the judge they had done).

Third, there is always the issue of assumptions -- experts base their evidence on assumptions. If those assumptions cannot be proven then the expert's evidence is worthless. Unfortunately, the proof of the assumptions often falls by the wayside. Thus for, example an expert says "If the temperature was less than 5 degrees, the person was dead for six hours" If it turns out that the temperature was 10 degrees than this evidence is no help at all but often the first part goes in and no-one ever deals with what the temperature was and so the evidence just becomes "the person was dead for six hours" when, in fact, it may have been three.

Sadly though, unless defence counsel are properly prepared to fight these fights and challenge the evidence -- which requires understanding the evidence -- and judges are willing to exclude witnesses and limit testimony then these issues will not get dealt with. Sadly though unless counsel are funded to do this work it will not get done. Furthermore, given the background of most counsel -- general arts, economics, social sciences or business -- many are just not equipped even if fully funded to go into the depths of this sort of evidence in the manner needed to deal with these problems.

Thus the solution lies in four pieces:

(1) re-visiting Mohan and revising the rules that have kept judges from excluding experts from testifying at all;

(2) funding lawyers to allow them to properly prepare to challenge such evidence;

(3) ensuring that lawyers are properly qualified -- which may mean trying to recruit more lawyers with science backgrounds -- to deal with such evidence;

(4) an increased willingness on the part of courts to keep experts from "roaming" and limiting their evidence to those matters for which the basis can, in fact, be proven.

It will be interesting to see if after the scandal of Dr. Smith's dreadful conduct the courts, the bar and the Parliament and legislatures of Canada are willing to come to grips with these matters.

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Monday, February 18, 2008

The State of the Federation

I have lately been distracted by a number of personal matters -- yes these do intrude upon blogging from time to time -- but there has been a recent spate of articles culminating in an opinion piece in today's Globe and Mail by Rudyard Griffiths, the outgoing head of the Dominion Institute, that have motivated me to write. Griffiths' valedictory piece laments the widening rift that has quietly developed with the encouragement of the Federal government between Quebec and the Rest of Canada. Griffiths' suggests that it is the Rest of Canada that will be the loser in this process through the slow creep of Americanization. Quebec he suggests will remain vital and alive given its cultural strength and health.

While Mr. Griffiths correctly diagnoses the illness, he, I fear, misses the mark in terms of outcome. While we all stand to lose a lot through the withering of the two founding nations nature of Canada it is Quebec that will lose the most in the long term -- indeed it could lose everything.

The illness is obvious for anyone who steps back and looks. Successive federal and Quebec governments -- starting with the Mulroney Government but with increasing haste with the Martin and Harper Governments -- have essentially implemented sovereignty-association without giving it that name. Quebec has been recognized as a distinct nation, has been allowed to implement a separate immigration policy, has separate recognition in a number of fields on the international stage and has been given the effective ability to opt out of or veto new federal initiatives.

This last matter is the most corrosive to the overall cohesion of the nation and the one that will start to drive things in a number of ways in the near future. There are a wide variety of matters which Canadians increasingly recognize as calling for a national strategy beyond facilitated workshops of the premiers presided over by an emasculated Prime Minister. Canadians are increasingly calling for national and uniquely Canadian solutions to issues such as environmental protection, national security, economic crimes, healtcare and immigration and there is an increasing sense of frustration that nothing is being done.

The reality is, however, that Quebec as a matter of principle will oppose the development of new Federal initiatives in any of these areas unless Quebec is permitted to opt-out and be paid for the right to do so. Many of these areas cannot be addressed on a piecemeal basis (the same air will drift over Quebec no matter what) and how compensation should be paid is a big mystery (how does one pay Quebec for Canada establishing a national securities regulator). More practically however, the other provinces will equally oppose initiatives that do not include Quebec under the same programs. In the area of the environment, for example, why would Alberta, as a producer, accept greater federal environmental regulation of the oil sands from a Parliament in which Quebec, a consumer, is disproportionately represented when Quebec would have the ability to veto or opt-out of the program?

Mr. Griffiths sees this as reinforcing the Americanization of the Rest of Canada, citing moves such as the introduction of fixed election dates and the interrogation of Supreme Court of Canada nominees. In fact, these are both overblown concerns that have had limited application and have done little to capture the imagination of most Canadians. The greater danger lies in the looming demographic problem brought upon us by the increasing age of the Baby Boom generation and the failure of that generation to breed a replacement generation. This simple demographic reality is going to work profound changes in our society which we are just being into plumb (see the most recent edition of the Atlantic Magazine in this regard).

The simple problem that this demographic reality poses is this: who will do all the work that we expect to be done? This does not just mean the work that the state will have to do but also the work that businesses will have to do. Anyone who is an employer knows that one of the hardest problems we face is finding adequate skilled personnel to enter institutions and stay with them, acquiring the skills and loyalty necessary to rejuvenate the institution. This is what is behind the huge recruitment drive that is underway in almost every level of government and in almost every large institution as these bodies try to come to grips with how to replace the wave or retiring Baby Boomers who are about to exit the workforce (if they get to realize their Freedom 55 dreams).

In the Rest of Canada this reality I think has been driving and will increasing drive two important trends: first, how do we bring more highly qualified, eager, skilled people to this country to fill the positions the dearth of Gen X, Y and Z's will leave empty? Second, how do we ensure that the potential of every person born in Canada is realized and put to its best use? Our reaction to the first trend I see as differentiating us from the United States -- living in Western Canada is to live in a world of immigration. Out here we want people to come and will do almost anything to make them come -- whether it be from Newfoundland (go to Fort MacMurray sometime) or China (go to Richmond). We are working to pull down barriers to immigration and will not buy into the xenophobia which seems to be gripping the United States.

We are just begining to come to grips with the issue but one thing that I think this will eventually motivate -- particularly in an increasingly bi-national country -- is a re-evaluation of the policy of official bilingualism in the Federal civil service. The Federal civil service now is in a toe to toe fight both with the provincial public sectors and the private sector for highly skilled workers. It can compete with the latter on certain benefits (eg pensions) but not its openness to skilled workers who do not speak French. The Federal civil service cannot compete with the provincial public sector on either of these two criteria. If you are a highly skilled unilingual young person looking for a career in the public service the provincial public services pay better and do not have the bilingualism obstacle to advancement. Moreover, for the reasons noted above, it will be at the Provincial level that we will increasingly see the new ideas and initiatives occur.

In terms of attracting people to immigrate, a requirement that one learn and speak French is another obstacle that will also affect the choice of skilled migrants. While mandarin is rapidly coming up on the outside, at present English remains -- so to speak -- the lingua franca of business, international travel and international institutions. It certainly remains the language of entry for the United States.

Quebec has benefited greatly from the era of official bilinualism and also the Trudeau era which created a real feeling of commitment in most of the Rest of Canada to take steps in our day to day lives to make Quebec an integral part of Canada. The fact that my daughter is in French immersion rather than Mandarin or Spanish immersion is a testament to this fact. This attitude has made it easy for young Quebeckers to have options throughout Canada in the Federal civil service and in industry and it has increased the pool of talent available for Quebec industry to draw upon. If we were to retreat from this bilingual vision of Canada to the pre-1968 bi-national vision (that is a French Quebec and an English Rest) Quebec's youth would face fewer French options outside of Quebec and Quebec would face an increasingly impoverished pool of talent to draw upon outside of its borders. It would also lose the advantage it has enjoyed of having its youth gain experience in the broader Canadian public service before returning to Quebec.

Recently Pauline Marois suggested that encouraging bilingualism would be good for young Quebeckers and was almost pulled to shreds by the Quebec pur laine elite. But she was right and remains right. Bilingualism both inside and outside Quebec benefits Quebec -- it is a culture that allows Quebec to maintain its French culture while giving its youth the ability to work in a larger world both in their language and in English. If that world is narrowed -- say by the Rest of Canada reverting to unilingual English -- Quebec youth will be faced with a different set of choices. They will increasingly have to master English and work in English to do anything outside of their home Province and those who don't will find their options limited to Quebec.

Personally I see the rest of Canada of Canada continuing to differentiate itself from the United States. It has been impressive how we have remained tolerant, open and experimental in the face of a range of issues including terrorism, globalization and racial tension. We have seen ourselves become more diverse, more asian and more aboriginal and we have adjusted and, I think, come out richer. Quebec, depressingly seems to be going in a different direction. While Montreal remains one of the most exciting and diverse cities in Canada, the Rest of Quebec is becoming increasingly xenophobic, anti-English and anti-migrant. The economic realities that have come with that, ironically, I think are making Quebec the province most in danger of being Americanized (witness the recent health care report). This course of action will, in the end, doom Quebec. If Quebec turns into a true French island in a unilingual (or bilingiual Spanish-English) North America it will slowly lose its youth, fail to attract the best of the world and find its language under an increasing siege.

What has to change? Well the Rest of Canada has to continue its engagement with Quebec. That is a given. On the other hand, Quebec has to revive its engagement with Canada. If Quebec continues to send its best and its brightest to the Bloc Quebecois and fails to generate another Trudeau or Laurier it is hard to see how the present drift will end. English Canada wants to see a French leader who is engaged with English and French Canada and inspires both but if no leaders are forthcoming from Quebec English Canada will not merely fall into some depressive funk and drift into the United States. Instead I expect we will strike off in some other direction and in due course leave the experiment of a bilingual nation behind.

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