Court of Appeal for Ontario

Date: 20220422 Docket: C69500

Lauwers, Pardu and Sossin JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario (Ministry of Natural Resources and Forestry) Respondent

and

The Town of the South Bruce Peninsula Appellant

Counsel: Jonathan C. Lisus and Connia Chen, for the appellant Nicholas Adamson and Madeline Ritchie, for the respondent Lindsay Beck, Bronwyn Roe and Zachary Biech, for the interveners, Environmental Defence and Ontario Nature

Heard: March 11, 2022 by video conference

On appeal from the order of Justice Julia A. Morneau of the Ontario Court of Justice dated March 8, 2021, dismissing an appeal from the conviction entered on October 3, 2019 by Justice of the Peace Charles W. Anderson of the Ontario Court of Justice.

Pardu J.A.:

[1] The Piping Plover is an endangered species protected by the Endangered Species Act, 2007, S.O. 2007, c. 6 [the Act]. Its migratory path brings it to Ontario beaches like Sauble Beach from April to August, where it builds nests and has its young. Its habitat is protected under s. 10(1)(a) of the Act, which provides:

10(1) No person shall damage or destroy the habitat of,

(a) a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species;

[2] The appellant, the Town of the South Bruce Peninsula [the Town] was convicted of 2 counts of damaging the habitat of the Piping Plover at Sauble Beach on April 13, 2017 and between August 23 and September 7, 2017.

[3] The Town appeals from the decision of the summary conviction appeal judge dismissing its appeal from the trial decision. It raises two issues. First, it argues that the courts below erred in their interpretation of the word “damage” in s. 10(1). It submits that the trial justice erred in adopting a dictionary definition of “damage” and argues that “damage” should be more narrowly defined. It submits that the statutory prohibition is so broad that it penalizes ordinary activities that might be regarded as commonplace. It points out that Sauble Beach is an important site for human recreational activity. Second, the Town argues that the courts below erred in holding that the opinion evidence of a Ministry of Natural Resources [MNR] biologist was admissible. It submits that the witness lacked the necessary impartiality and independence and that her evidence should not have been admitted.

[4] I do not accept these arguments and would dismiss the appeal.

Background

[5] The Piping Plover had disappeared from Ontario by the early 1980s. Its continued existence was threatened by the degradation of its habitat and human activities, including recreation. They returned in the spring of 2007 to nest at Sauble Beach, and have returned there and to Wasaga Beach to nest each year, though their numbers are still small.

[6] The provincial government and volunteers have dedicated significant efforts to protect the Piping Plover and its habitat. Before 2017, the relationship between the MNR and the Town was quite cooperative. MNR biologists made presentations to the Town and gave guidance on how to avoid damaging the habitat. The Town passed a bylaw which prohibited raking Sauble Beach before the birds arrived in the spring or within 30 feet of the sand dunes at any time of the year.

[7] Town staff and the MNR would usually consult each year to determine what maintenance work could be done without damaging the habitat. Over the years, they agreed that sand could be removed from around playground equipment, drainage swales could be straightened, and any dangerous objects that had washed up on the beach over the winter could be removed.

[8] In February and April 2017, Town staff and MNR biologists met to discuss what maintenance work could be done on the beach before the Piping Plover arrived.

[9] In April 2017, the Town used heavy equipment to mechanically rake the entire width and length of the beach, which spanned some 11 kilometres. This far exceeded the work contemplated and agreed to by the MNR. Vegetation, wrack and driftwood were removed, the surface of the beach was leveled and microtopographical features of the beach, like mounds of sand, were flattened. The work left deep furrows and tire tracks on the beach. Two expert witnesses at trial testified that these actions damaged the Plover habitat by:

a) removing areas and features that Plover have used and could use for scrapes and nesting by loosening soil, removing vegetation and debris and levelling microtopography such as hummocks;

b) removing foraging areas, such as vegetation and wrack;

c) negatively impacting the invertebrate species that Plover eat by disturbing the soil substrate in which they live;

d) removing features along the beach that the Plover use for shelter and camouflage, such as microtopography, vegetation and debris; and

e) lowering the beach grade and loosening soil, which leads to flooding and erosion, “degrading the overall ecosystem that Piping Plover rely on”.

[10] Turning over the sand, as was effected by raking, made the insects and invertebrates normally living in the upper layers of the sand less available to the Plover. The birds’ need for food was particularly acute when they arrived after a long migration, if they were to successfully reproduce.

[11] Between August 23, 2017 and September 7, 2017, the Town used a bulldozer and agricultural cultivator to work the full length of the beach. According to the prosecution evidence, the Town cut into foredunes and dunes, removed several feet of vegetated dune, levelled elevated areas and depressions in the sand and lowered the grade of the beach. The MNR had not approved of this work. The two experts testified that this work had damaged or destroyed Piping Plover habitat by:

a. Removing features used for nesting, foraging, shelter and camouflage;

b. Loosening sand and exposing it to drying and erosion; and

c. Removing the foredunes, vegetation and topography which stabilize the entire beach dune ecosystem that sustains crucial habitat features.

[12] Foredunes are particularly fragile and might not regenerate for a long time, if at all. The vegetation would not regrow in time for the 2018 breeding season.

The Trial Decision

[13] Prior to the trial, the trial justice qualified Ms. Suzanne Robinson as an expert witness over the Town’s objection that she lacked the independence and impartiality required by the Supreme Court in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. More specifically, the Town alleged that Ms. Robinson’s involvement with the MNR as an employee disqualified her as an expert witness. The trial justice found there was “nothing really unusual” about her involvement and rejected the allegation that Ms. Robinson was “instrumental” in the decision to lay charges against the Town.

[14] The Town did not call any evidence at trial. In particular, there was no evidence about why the Town undertook beach maintenance work that was much more invasive than agreed upon with the MNR.

[15] The trial justice held that remedial legislation like the Act should be given a generous interpretation to ensure that its goals are fulfilled.

[16] In determining whether the raking caused “damage” to the Piping Plover habitat, the trial justice noted that the Oxford Dictionary defines damage as “to do something – [including] physical harm caused – to something that makes it less attractive, useful or valuable”. He noted that the damage does not have to be permanent, and could be minor or temporary in nature.

[17] On the first count, dated April 13, 2017, the trial justice concluded that the mechanical raking of Sauble Beach just prior to the arrival of the Piping Plover caused damage to its habitat. He found that the raking would prevent the Piping Plover from undergoing courtship, building a nest, and mating or laying eggs, and would leave them vulnerable to reduced food supply, predators and extreme weather. The trial justice rejected the Town’s argument that the statutory defence of due diligence applied to its decision to rake the beach, noting that the decision exceeded the MNR approval and violated the Town’s own bylaw. Accordingly, the trial justice convicted the Town on the first count.

[18] On the second count, dated between August 23, 2017 and September 7, 2017, the trial justice found that the bulldozing of parts of Sauble Beach to level the sand after the Piping Plover had left for the season caused damage to the Piping Plover habitat. The decision to authorize this maintenance was arrived at by a 3-2 vote of the Town Council. The trial justice found that the Town contravened its own bylaw by failing to stay outside of the 30-feet boundary of the historical dunes and causing “long-lasting or even permanent” damage to the foredune and dunes on the beach. Two expert witnesses, including Ms. Robinson, testified that the bulldozing removed natural vegetation required for foraging, nesting, camouflage and shelter and altered topography used for nesting and foraging. They also testified that the removed vegetation and topographies may not return or may not be of comparable value by the following year. The trial justice found that the Town could not establish a due diligence defence because the maintenance contravened its bylaw and lacked MNR authorization. He found that the decision “showed a wanton disregard for the habitat of the piping plover”. As a result, the trial justice convicted the Town on the second count.

The Appeal Decision

[19] The Town appealed the convictions on three grounds: (1) that the trial justice erred in his interpretation of “damage” under the Act; (2) that the trial justice erred in interpreting “habitat” under the Act as any area that the at-risk species made use of; and (3) that the trial justice erred in qualifying Ms. Robinson as an expert. The appeal judge refused to overturn the convictions and dismissed the appeal, except for a slight modification of the extent of Sauble Beach comprising the “habitat”.

[20] On the issue of the interpretation of “damage” under the Act, the appeal judge rejected the Town’s argument that a habitat is only “damaged” if there is a demonstrated negative impact on the ability of the species to carry on its life processes. The appeal judge noted that s. 9(1) of the Act addresses “harm” to species at risk, while s. 10(1) is focused on damage to the habitat of species at risk. She observed that the purpose of both the Act and the Fisheries Act, R.S.C. 1985, c. F-14 is to protect species and their habitats, and under the Fisheries Act, the prosecution has not been required to prove harm to the species when addressing whether a fish habitat has been “altered, disrupted or destroyed”: R. v. High, 2003 BCSC 1723; R. v. Rhodes, 2007 BCPC 1. The appeal judge noted that the definition of damage as including causing something to be “less attractive, useful or valuable” should be understood from the perspective of the species at risk. In the case of the Piping Plover, she observed that on the evidence of the experts, a flattened beach and the removal of foredunes and natural vegetation would impact nesting, foraging, shelter and camouflage. The appeal judge concluded that the trial justice made no errors in law and his findings of fact were supported by the trial record and entitled to deference.

[21] On the issue of Ms. Robinson’s qualification as an expert, the appeal judge concluded that the trial justice’s decision to admit Ms. Robinson’s evidence was entitled to deference. The appeal judge found that the trial justice addressed the issues that are at the heart of the expert opinion evidence inquiry set out in White Burgess. He correctly expressed the threshold inquiry required when a witness is proffered as an expert, identified the burden resting on the party opposing the admission of the expert opinion evidence and adverted to concerns about impartiality and independence. As a result, the appeal judge declined to interfere with the trial justice’s determination on this issue.

Arguments on appeal

[22] The appellant submits that the question is not whether the Piping Plover sustained damage, but rather whether its habitat sustained damage. It submits that damage is not a defined term and that a court must undertake a “species meaningful” interpretation of habitat. It submits that the determination of whether there was damage to habitat must be tied to the species. It submits that the evidence at trial did not link the actions of the Town to damage to the Piping Plover habitat.

[23] The appellant reiterates its arguments that the trial justice ought not to have qualified a MNR biologist to give expert evidence. It submits that because of the role she played in the investigation, the decision to charge, and the way in which she expressed her opinions, the trial justice could not have reasonably concluded that she met the White Burgess test for impartiality.

Analysis

(1) Interpretation of s. 10(1) of the Act

[24] I begin my analysis of the interpretation of s. 10(1) of the Act with the preamble to the legislation, which expressly sets out the goals the legislator hopes to achieve and the problems the legislation is designed to prevent:

Biological diversity is among the great treasures of our planet. It has ecological, social, economic, cultural and intrinsic value. Biological diversity makes many essential contributions to human life, including foods, clothing and medicines, and is an important part of sustainable social and economic development.

Unfortunately, throughout the world, species of animals, plants and other organisms are being lost forever at an alarming rate. The loss of these species is most often due to human activities, especially activities that damage the habitats of these species. Global action is required.

The United Nations Convention on Biological Diversity takes note of the precautionary principle, which, as described in the Convention, states that, where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.

In Ontario, our native species are a vital component of our precious natural heritage. The people of Ontario wish to do their part in protecting species that are at risk, with appropriate regard to social, economic and cultural considerations. The present generation of Ontarians should protect species at risk for future generations.

[25] From this preamble I draw the following:

a. One of the goals of the legislation is to prevent the loss of species caused by human activities which damage the habitat of the species.

b. Measures to prevent significant reduction or loss of biological diversity should be undertaken even where full scientific certainty is not present.

c. The goal is to prevent damage to avoid or minimize threats to endangered species.

d. Species at risk should be protected, with appropriate regard to social, economic and cultural considerations.

[26] “Habitat” is defined in s. 2(1) to mean “an area on which the species depends, directly or indirectly, to carry on its life processes, including life processes such as reproduction, rearing, hibernation, migration or feeding”.

[27] Section 10(1) prohibits the damage or destruction of the habitat of a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species. It is common ground that the Piping Plover is such an endangered species.

[28] Section 17 of the Act provides that the Minister may issue a permit authorizing a person to engage in activity that would be otherwise prohibited by s. 10. At the time the charges in this matter were laid, the Minister could issue a permit under this section only if:

(a) the Minister is of the opinion that the activity authorized by the permit is necessary for the protection of human health or safety;

(b) the Minister is of the opinion that the main purpose of the activity authorized by the permit is to assist, and that the activity will assist, in the protection or recovery of the species specified in the permit;

(c) the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

(i) the Minister is of the opinion that an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit,

(ii) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and

(iii) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit; or

(d) the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

(i) the Minister is of the opinion that the activity will result in a significant social or economic benefit to Ontario,

(ii) the Minister has consulted with a person who is considered by the Minister to be an expert on the possible effects of the activity on the species and to be independent of the person who would be authorized by the permit to engage in the activity,

(iii) the person consulted under subclause (ii) has submitted a written report to the Minister on the possible effects of the activity on the species, including the person’s opinion on whether the activity will jeopardize the survival or recovery of the species in Ontario,

(iv) the Minister is of the opinion that the activity will not jeopardize the survival or recovery of the species in Ontario,

(v) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted,

(vi) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit […].

[29] The statutory regime creates an absolute prohibition against damage to the habitat of an endangered species but allows the Minister to permit some intrusion where the public interest so requires. The prohibitions are broad, but the exceptions authorized by the Minister are the vehicle through which other social and economic needs are recognized: Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741, 134 O.R. (3d) 450, at para. 92.

[30] The Act should be given a generous interpretation in light of its remedial nature and its objective of environmental protection. As noted by the Supreme Court in Castonguay Blasting Ltd. v. Ontario (Environment), 2013 SCC 52, [2013] 3 S.C.R. 323, at para. 9:

[E]nvironmental protection is a complex subject matter — the environment itself and the wide range of activities which might harm it are not easily conducive to precise codification. As a result, environmental legislation embraces an expansive approach to ensure that it can adequately respond to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation. Because the legislature is pursuing the objective of environmental protection, its intended reach is wide and deep.

[31] Here, the trial justice considered the text of the legislative prohibition and adopted a dictionary definition of damage as to do something physical that causes a feature to be less attractive, useful or valuable. He considered the changes the Town made to the beach from the point of view of the needs of the Piping Plover for an undamaged habitat, precisely the task necessitated by the charges under s. 10(1) and the approach the appellant now suggests he should have undertaken. The trial justice considered the legislative purposes and the factual context. There is no basis to conclude that his ultimate findings on questions of mixed fact and law were tainted by palpable and overriding error.

[32] I do not accept the argument of the appellant that there was no evidence of any link between the actions of the Town and any effect on the Piping Plover habitat.

[33] I leave aside for the moment the issue of the expert evidence of Ms. Robinson, the MNR biologist, as the appellant argues that the trial judge erred in admitting her evidence. In any event, the trial judge was entitled to and did accept the evidence of the other prosecution expert, Dr. Francesca Cuthbert, who concluded that the Town’s actions in April 2017 and August to September 2017 damaged the habitat in the ways described in paragraphs 11, 17 and 18 above. Her expertise to give opinion evidence about the Piping Plover, their habitat and the effect of the Town’s actions was undoubted.

[34] Those conclusions were reasonable. The Piping Plover urgently needed food when they arrived in April if they were to successfully nest and reproduce. The deep raking and turnover of the soil just before they arrived made the invertebrates upon which they depended as a source for food unavailable to them. The removal of wrack and vegetation from the shoreline deprived them of that source of camouflage and shelter. The work in August to September altered sensitive areas on the shore upon which the Piping Plover depended. The foredunes might take many years to recover.

[35] The application of the de minimis defence to charges under this Act must be undertaken with caution because of the potential cumulative effect of small damage over an extended period of time. In any event, the work done by the appellant went well beyond that performed in earlier years, in consultation with the MNR, and cannot be characterized as a minimal interference with the Piping Plover habitat.

(2) Piping Plover expert evidence

[36] The appellant submits that the trial justice erred in admitting the expert opinion evidence of Ms. Robinson. While the appellant now takes no issue with her expertise, it maintains that she lacked the necessary impartiality and independence to qualify her as an expert witness.

[37] Ms. Robinson is a biologist. She had been employed with the MNR since 2003 and had been at the Midhurst office of the Ministry since 2007. She had been working on the protection of the Piping Plover and the application of the Act since 2008. She had developed protocols for avoiding harm to the species and its habitat. Her work included close monitoring, inventory and survey of the species at Sauble Beach and elsewhere. She had participated in measures adopted on the beaches to protect the birds such as perimeter fences and signage. She had made presentations to the Town Council about the Piping Plover and its habitat and had worked with volunteers dedicated to the well-being of the species. In particular, she had appeared before the Town Council to give her views and advice about permissible beach maintenance. She expected the Town to adhere to her advice and directions. She did not attend at the beach to review the maintenance that led to the charges, but formed the opinion, based on the information provided to her, that the work had damaged the Piping Plover habitat.

[38] Staff Sergeant Rick Maw was the Director of Enforcement for the Midhurst office of the MNR. He was the officer in charge of the investigation that led to the present charges. He wrote to Ms. Robinson and asked her for a document outlining the following:

• A description of what habitat Piping Plover need and the important elements of that habitat;
• An opinion on whether the work that the Town did in the spring damaged Plover habitat;
• How the habitat was damaged; and
• How the Plover would have been impacted by that work

[39] The purpose of the document was to brief Sergeant Maw on whether a charge should be laid under the Act. Ms. Robinson began working on the document while she was on maternity leave.

[40] The final memorandum provided by Ms. Robinson with respect to the Spring 2017 maintenance contained the following:

• Background information on the Piping Plover, including its appearance, breeding populations, habitat use, shelter needs, and brooding and rearing;
• An assessment of the impact of the Spring 2017 activities, including photos;
• Consideration of the possibility that this damage will “harm and harass” the species; and
• An analysis of reproductive success during the 2017 breeding season.

[41] The addendum, which addressed the Fall 2017 maintenance, contained the following:

• Background information about the use of beach and dune ecosystems by Piping Plover for their life processes; and
• An assessment of the impact of the Fall 2017 activities, including photos.

[42] Ms. Robinson asked another biologist working in her office, Ms. Jodi Benvenuti, to review her draft memorandum to get “her assistance in terms of clarity, information, technical correctness of the information [she] provided”.

[43] An earlier draft of the memorandum raised the issue of whether the conduct of the Town might also have amounted to a violation of s. 9 of the Act, which prohibits harming or harassing the species itself. However, this was deleted at the request of MNR counsel, who indicated that Ms. Robinson’s role was to provide an opinion as to whether the habitat was damaged or destroyed, and not about whether there was a violation of the Act. This would present her as being “more objective”.

[44] Ms. Robinson was also involved in the 2018 review of a stop order preventing the Town from undertaking similar beach maintenance. In her opinion, raking the beach in April 2018 would have damaged the Plover habitat.

[45] Ms. Robinson feels strongly that the Piping Plover is a bird that needs to be protected and is threatened by beach maintenance. She testified that she understood her duty to the court as an expert witness and that she did not feel any pressure to veer from a scientific or biological opinion because of her employment.

Submissions on the voir dire at trial

[46] The thrust of the Town’s submissions on the voir dire was that Ms. Robinson’s prior and ongoing involvement with Sauble Beach and the investigation at issue rendered her unable to act as an expert. Those submissions noted her involvement with the ongoing management of Sauble Beach; her direct involvement with the issue of beach maintenance; the advice and direction she gave to the Town Council in the past, and her expectation that her recommendations would be followed; her involvement with the present investigation despite being on maternity leave; the fact that she expressed views that the Town’s acts constituted breaches of the Act despite not attending the beach and investigating for herself; her involvement with the officers who laid the charges; and her continued involvement with the activities on Sauble Beach, including her involvement with respect to the 2018 stop order review.

The trial justice’s decision on the voir dire

[47] The trial justice noted that the admissibility decision turned on the application of White Burgess. He noted that the case law interpreting that authority cited to him by the parties related to criminal cases, and that there was no case to which he had been referred which applied it in the context of regulatory offences. He determined that White Burgess applied to the matter at hand, but “in a more limited scope”.

[48] He began by citing the following excerpts from paras. 46-49 of White Burgess:

[E]xpert witnesses have a duty to assist the court that overrides their obligation to the party calling them. If a witness is unable or unwilling to fulfill that duty, they do not qualify to perform the role of an expert and should be excluded.

[T]he expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met.

[T]he burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty.

In most cases, a mere employment relationship with the party calling the evidence will be insufficient to [render the evidence of the proposed expert inadmissible].

[49] The trial justice noted that “Ms. Robinson has taken a solemn affirmation and declared she understands her duty to the court to provide assistance that may override her obligation to the party calling her”. He continued: “The question that I had to ask myself is: does the defence have a realistic concern that Ms. Robinson’s evidence should not be received because she is unwilling or unable to comply with that duty?”

[50] He reviewed the activities on Ms. Robinson’s part which the appellant urged should cast doubt on her independence and impartiality and observed that all of the activities would come “within the duties expected from a Ministry of Natural Resources and Forestry employee. There is nothing really unusual about any of those activities.”

[51] He considered the most serious allegation to be the claim that Ms. Robinson was involved directly with the decision to lay the charge against the Town, and that she therefore could not be independent or unbiased. However, the trial justice concluded that there was no evidence that Ms. Robinson directed anyone to do anything with respect to the investigation or to lay a charge or take photographs. She “interpreted the investigation and findings of [Conservation] Officer Mauthe; she wrote a report based on her expertise, education and experience and examined photographs taken by both her and others to support this report.” He found that the suggestion that Ms. Robinson was “instrumental” in convincing the officers or prosecutor to lay the charges was “preposterous”.

[52] He rejected the argument that Ms. Robinson’s decision to express an opinion after hearing what was done to the beach, before she saw it, was evidence of bias. There was no evidence of the context of that statement.

[53] He also rejected the argument that her attendance and testimony at a stop work hearing indicated bias. He considered that to be part of her employment duties and noted that there was no evidence that her testimony was anything less than professional or unbiased. He found that the editing of the report by Ms. Benvenuti was undertaken to ensure that the report was “accurate, complete, and professional.”

[54] The trial justice concluded that the “defence has not met its onus in demonstrating a realistic concern, that Ms. Robinson is unwilling or unable to fulfill her duties to this court.”

The appeal decision

[55] While the appeal judge did not agree with all of the statements made by the trial justice about the application of White Burgess, she ultimately concluded that his decision to admit Ms. Robinson’s opinion evidence was entitled to deference.

[56] The Town reiterated many of the arguments made at trial, including the argument that Ms. Robinson’s willingness to prepare her report while on maternity leave was evidence of an overzealous interest in the prosecution. The appeal judge noted that the trial justice correctly identified the test and burden of proof stipulated by White Burgess and upheld the decision.

Analysis

[57] I begin by noting that I agree with the general principles governing the application of the White Burgess framework as expressed in my colleague’s concurring reasons.

[58] This court owes significant deference to a trial judge’s decision on the admissibility of expert opinion evidence absent an error of principle, a material misapprehension of evidence or an unreasonable conclusion: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 47.

[59] I summarize the principles which emerge from White Burgess regarding the duties of expert witnesses as follows:

a. An expert must be fair, objective and non-partisan. Their duty to assist the court overrides their obligation to the party calling them. If a witness is unable or unwilling to fulfill that duty, they do not qualify to perform the role of an expert and their evidence should be excluded: at para. 46.

b. Absent a challenge to the witness’s independence and impartiality, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that the threshold level of impartiality is met: at para. 47.

c. Once the expert attests to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty. If the opponent does so, the burden to establish this aspect of admissibility lies on the party proposing to call the evidence, on the balance of probabilities: at para. 48.

d. It is rare that a proposed expert’s evidence would be ruled inadmissible on this basis. The trial judge must determine, having regard to the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out their primary duty to the court. Exclusion at the threshold stage of the analysis should only occur in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but should be taken into account in the overall weighing of the costs and benefits of receiving the evidence: at para. 49.

[60] While I do not agree with all of the comments by the trial justice about the application of White Burgess in this context, he essentially applied the test required by that authority. He was not satisfied that the Town had established that there was a realistic concern that Ms. Robinson was unwilling or unable to comply with her duty to the court. The Town argued that Ms. Robinson’s conduct, such as working on her report at home, was illustrative of an over-zealous interest in the prosecution. The trial justice’s comments that the activities complained of were amongst her normal work activities were made in response to the Town’s suggestion that there was something excessive in her conduct.

[61] For some, working at home on a report while on maternity leave might be indicative of a conscientious work ethic. That Ms. Robinson expressed an opinion that the Town’s actions damaged the habitat before she physically attended at the beach could well be a reasonable position to take, provided that she was given an accurate description of the Town’s actions. As the trial justice pointed out, there was no context given that could permit a trier to conclude this was evidence of bias. In some contexts, a premature opinion might be evidence of a rush to judgment and an inability to fulfill the duty to the court, but the context here was not provided. Similarly, the fact that Ms. Robinson was called as a witness in relation to the 2018 stop work order says nothing about her ability to fulfil her duty to the court. Finally, that Ms. Robinson is committed to the welfare of the Piping Plover is not a basis to disqualify her. Her concern mirrors explicit legislative goals. One would not think, for example, of disqualifying a neonatologist as an expert witness because he or she was devoted to the welfare of newborn babies or wrote a report while on parental leave.

[62] White Burgess teaches that a court must also examine the substance of the evidence proposed in assessing whether the proposed witness is able to fulfill her duty to the court. Here, we have the benefit of hindsight offered by a comparison of the evidence of Dr. Cuthbert and that of Ms. Robinson. Their opinions were consistent with one another. There was no overreaching by Ms. Robinson which took her opinions beyond the realm of reasonable scientific conclusion.

[63] The trial justice concluded that this was not one of the rare cases where the evidence of a proposed expert should be excluded because he or she was unwilling or incapable of carrying out his or her duty to the court. This decision was reasonable and there is no basis to intervene.

[64] An appeal lies to this court on a question of law alone, pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33. This appeal raises questions of mixed fact and law in respect of which no palpable or overriding error has been demonstrated and I would accordingly dismiss the appeal.

“G. Pardu J.A.”

Lauwers J.A. (concurring):

[65] I concur with my colleague’s decision in result and in analysis, except with respect to the appellant’s challenge to the admissibility of the expert evidence of Ministry biologist Ms. Robinson. In my view, the trial justice erred in his approach to the appellant’s challenge under the procedure prescribed in White Burgess, given Ms. Robinson’s intimate involvement in the prosecution. [1] However, this conclusion does not assist the appellant because the evidence of the other expert accepted by the trial justice, Dr. Cuthbert, who is a recognized authority on the Piping Plover, was sufficient to ground the success of the prosecution.

[66] The courts have long worried about the reliability of expert evidence when the witness is alleged to have a bias or to lack independence. This is a recurrent problem in criminal [2], quasi-criminal and civil [3] cases, and was the central issue in White Burgess, where Cromwell J. pointed out that “an expert’s lack of independence and impartiality can result in egregious miscarriages of justice.” [4]

[67] The critical impetus for White Burgess and the ongoing judicial reflection on this issue in the developing case law was the collective shock at the astonishing injustices brought about by undue reliance on the biased pathology evidence of Dr. Charles Smith in a large number of wrongful convictions. Justice Goudge laid these injustices out in devastating fashion in his report. [5] The legal system, he noted, is “vulnerable to unreliable expert evidence.” [6] The control is the trial judge, who “must bear the heavy burden of being the ultimate gatekeeper in protecting the system from unreliable expert evidence.” [7] This is a direction that trial judges are and must continue taking to heart in civil and criminal proceedings.

[68] This case engages the issue in a particular context, that of the testimony of expert employees, which is a common feature of criminal, quasi-criminal and regulatory proceedings. Employed expert witnesses are often involved in the investigation of a possible criminal or quasi-criminal offence and in the decision to prosecute. In this case Ms. Robinson gave expert evidence at the trial on behalf of her employer, the Ministry of Natural Resources and Forestry, in a prosecution under the Endangered Species Act, 2007, S.O. 2007, c. 6.

[69] There is good reason for judicial concern about the lack of independence or the presence of bias arising specifically from employment relationships. In an article entitled “Blurred Lines: A Critical Examination of the Use of Police Officers and Police Employees as Expert Witnesses in Criminal Trials” [8], the authors identify several psychological risks to impartiality and independence such as relationship bias, the bias posed by potential rewards, the bias posed by pre-existing views, and contextual bias. [9] The authors note that “the potential consequences flowing from these forms of bias are extremely significant in the criminal law context and are particularly concerning with respect to police officers or civilian employees of police agencies who are called to provide expert testimony in court.” [10] In my view, these psychological risks also apply to quasi-criminal, and civil proceedings. [11]

[70] Expert employees pose unique challenges to the White Burgess framework, as the cases show. These cases are beginning to coalesce into a coherent category.

The Governing Principles Relating to Employee Experts as Witnesses

[71] The threshold test for the admission of expert evidence is that: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified: R. v. Mohan [12] and R. v. Abbey [13]. These threshold requirements apply to employee experts. Apart from the issue of qualification, they are not at issue in this appeal.

[72] One aspect of proper qualification is the assessment of whether the witness has a disabling bias or lack of independence that renders the witness unable or unwilling to provide fair, non-partisan and objective assistance to the court. [14]

[73] Three concepts underlie an expert’s duty to the court: impartiality, independence, and absence of bias. [15] This court summarized and paraphrased these White Burgess principles in Mills: “Experts are expected to be (a) impartial, in the sense that they give only an ‘objective assessment of the questions at hand’; (b) independent, in the sense that their opinions result from an exercise of ‘independent judgment, uninfluenced by who has retained’ them or the ‘outcome of the litigation’; and (c) unbiased, in the sense that they do not ‘unfairly favour one party's position over another’”. [16] The court added: “The acid test is whether the expert's opinion would not change regardless of which party retained him or her.” [17]

[74] A trial judge’s assessment of a witness’s ability to provide fair, non-partisan and objective assistance to the court arises three times in the course of a trial. First, the trial judge addresses the issue in qualifying the witness to testify.

[75] The procedure prescribed by White Burgess calls on the expert to attest that his or her duty to assist the court overrides any obligation to the party calling the expert as a witness. Then: “the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty.” [18] But, “the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence.” Where the evidence falls short, the witness can be disqualified, “or those parts of it that are tainted by a lack of independence or impartiality, should be excluded.” [19]

[76] I make two observations about the qualification process. First, testimonial qualification is determined in a voir dire with the proponent tendering the witness, the opponent cross-examining, and the judge deciding. The onus throughout the qualification process is on the proponent and the admissibility standard is on the balance of probabilities.

[77] Second, perfectly impeccable impartiality or independence is rarely possible and is not the standard. [20] In White Burgess, Cromwell J. explained that: “This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it.” [21] He added this comment: “I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases”. Deficiencies that are not disqualifying can be accounted for by imposing limits on the witness’s evidence [22] and in weighing the evidence. [23]

[78] This rarity usually leads counsel away from a full blown effort to disqualify a witness. The voir dire is perfunctory, if it happens at all, once qualifications have been accepted and the parameters of the expert evidence are set. Instead, the focus is on showing through cross-examination on the merits of the opinion that the witness has a measure of partiality that must be discounted in weighing the evidence.

[79] The second time the trial judge assesses a witness’s ability to provide fair, non-partisan and objective assistance to the court is during cross-examination. The trial judge’s gatekeeping function is never relaxed. This court held in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, that even if the expert is permitted to give evidence, the judge must continue to “fulfill his [or her] ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony.” [24] Hourigan J.A. noted that “the court has residual discretion [under this ongoing gatekeeper function] to exclude expert evidence even after admitting it, if later in the trial prejudice emerges that was not apparent at the time of admission.” [25] As in Bruff-Murphy, the disabling bias may only emerge in cross examination on the merits and result in disqualification. This too is a rare event.

[80] The third time is when the trial judge weighs the expert’s evidence. Bias that is not disabling is treated as a question of weight, as this court observed in Alfano v. Piersanti [26]:

Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency. [27]

[81] The assessment of an employee expert witness’s impartiality and independence is case-specific. The caselaw provides guidance and has yielded several factors that better specify the test beyond the governing principles. It is clear that an employment relationship is not a sufficient basis for finding that the witness lacks testimonial independence or is biased. [28] The area that has posed the most difficulties is where the expert employee had some involvement in the prosecution’s case. The deeper that involvement, the more likely the witness is to be disqualified as lacking the necessary degree of impartiality and independence, as the cases show.

[82] It is possible to make some useful analytical distinctions. Consider that an event causes an investigation, which leads to a decision to prosecute, and then to the prosecution itself. Each of these three stages has unique pressures. For explanatory convenience I address each, but deal last with the decision to prosecute.

Involvement in the Investigation

[83] The expert’s involvement in the investigation is not necessarily disqualifying. This is seen in many regulatory or quasi-criminal cases, which start with an event that is then investigated. In regulatory prosecutions, as this case among others shows, an expert opinion is necessary before charges are laid because causation is critical, might not be obvious, and might well be innocent. It would be impossible, where technical or scientific issues are engaged, for a prosecutor who is not expert in the field to evaluate the reasonable prospect of conviction without one or more expert opinions.

[84] For example, in Live Nation, the employed engineers were among the first on the scene in a Ministry of Labour investigation. Their investigation was technical and yielded information necessary to determine the physical cause of the collapse. They were not under the direction of the lead investigator on the prosecution. They were permitted to testify, with any concerns going to weight.

[85] Any expert must do some investigation or get investigation data in order to proffer an opinion. As Nakatsuru J. observed in Live Nation, the argument that “a proper expert should be one who is retained only after the investigation is complete, is handed a brief of the fruits of the investigation, and then testifies by giving an opinion based on a hypothetical or upon the work done by others” is unrealistic. [29] There is nothing untoward in the employee experts “observing the scene, conducting interviews, and performing testing”. [30]

[86] In Tang [31], a forensic accountant employed by the Ontario Securities Commission was found not to be disqualified even though his regulatory investigation led to the criminal charges. His investigative work for the Commission did not prevent him “from giving any and all forensic accounting evidence in the criminal proceeding”. [32] He gave evidence as to tracing the funds, to which the issue of criminal guilt was only tangentially related. The court noted:

The determination of whether an expert's prior connection with an investigation should disqualify that person from giving expert opinion evidence can only be made within the full context of the specific facts. The nature of the prior investigation, the role played by the individual expert in that investigation, and the nature of the proposed expert evidence would all be important considerations in the determination of whether the expert's prior involvement made the case…one of those relatively rare cases in which an expert's lack of independence or impartiality provided a basis for holding that the expert was not competent to testify. [33]

[87] I now move to the other end of the spectrum from the employee expert’s involvement in the investigation to involvement in the prosecution itself.

Involvement in the Prosecution

[88] Involvement in the prosecution itself requires closer scrutiny than involvement in the investigation because employee experts participating in the prosecution present the risk of becoming advocates for the prosecution.

[89] In McManus, an officer was involved in drug investigations and received information about the accused over a period of four years. He participated in the execution of a search warrant, testified at the bail hearing, and, in response to comments of the preliminary inquiry justice, produced, on his own initiative, an expert report that strengthened the prosecution's case. This court held that the history established a lack of independence, so that the jury should not have heard the officer’s opinion. [34] Recently retired Justice David Watt extracted this principle from McManus, with which I agree:

An interest in or connection with the litigation does not automatically render the proposed expert evidence inadmissible. However, a court must consider whether an expert's relationship to or interest in the litigation would result in the witness being unable or unwilling to carry out their primary duty to provide fair, non-partisan and objective assistance to the court. A heightened concern occurs for police expert witnesses to ensure their ability to offer impartial expert evidence. [35]

[90] Livingston [36] did not involve an employee but engaged similar issues. The trial judge did not qualify a retired police officer, who was an expert in the forensic recovery, examination and interpretation of computer data. The trial judge noted, that the proposed expert: “took on an extensive, active and at times a proactive role in the investigation [, and] provided investigators with strategic and legal advice in their efforts to mount a case against the defendants.” [37] After an extensive review of the evidence, the trial judge declined to qualify the witness:

Taking into consideration the nature and extent of Mr. Gagnon’s long and extensive participation in the police investigation of the defendants, as well his email comments revealing bias, I am satisfied there is a realistic concern that he is unable to provide independent, impartial and unbiased evidence. [38]

[91] In Advanced Construction, the employee was an engineer. He was “himself investigating directly by his observations of the information accessible to him and he was assisting the investigators by being the contact person with the technical knowledge beyond the expertise of the lead investigator”. [39] He was in “constant contact” with the lead investigator, who could not interpret the evidence without his assistance. [40] He also retained the external expert but did not give pertinent information to him until the trial, when in doing so, he breached the witness-exclusion ruling. [41] Knazan J. decided that he would permit the expert to give evidence on all aspects of engineering and geotechnical engineering, but not on the root causes of the collapse of the rig that led to the charges. [42] He found that the witness “identifie[d] too closely with the prosecution to be able give an impartial opinion.” [43]

[92] In Live Nation, the employed experts sat in on suspect interviews. Nakatsuru J. found that this raised a “red flag”. However, they testified that they had suspended professional engineering judgment until all the facts were in. He permitted them to give evidence without limitations. [44]

[93] The degree of involvement can be mitigated by the expert’s approach to informing himself or herself about the facts on which the opinion is sought. In Tesfai [45] the trial judge allowed a police officer to give opinion evidence relating to drug trafficking. Trafford J. noted:

Detective Sergeant Babiar testified about the procedures he followed to ensure the impartiality of his opinion in this case. He was approached by some of the senior officers in connection with a possible involvement in Project Marvel. They provided him with an overview of the project, in general terms. Once he agreed to join the investigation, the IPCs to be considered by him were selected by the Crown, and sent to him electronically. He received some surveillance folders, arrest folders and other information in some other folders. He also received an audiorecording of the calls and some transcripts. However, he did not pay any attention to this information, other than to open it and close it, so that he knew it related to this assignment. He did not consider the affidavits to obtain the two authorizations in the project. His first step was to read all of the calls, independently of anyone else's input. He did not read anything else. He did not have any theory of the Crown to guide him, because it could affect his analysis of the conversations. He did not want any information that might bias him in his review of the pertinent words in the pertinent calls. [46]

The officer was permitted to testify as an expert.

[94] In T.A., the Crown wished to call an officer to explain coded and street language in wiretaps connected to a robbery. The trial judge found:

The officer listened to wires as the project was ongoing and works in the same building as the officers directly involved in the investigation. He testified, however, that he did not proffer an opinion before charges were laid, he was not involved in the laying of charges, and he did not discuss his analysis of the wires with other officers involved in the project. I find that there is no realistic concern that this particular officer will not be able to execute his duty fairly and impartially. [47]

[95] I turn now to the issue of the employee expert’s involvement in the decision to prosecute.

Involvement in the Decision to Prosecute

[96] The analysis of the employee expert’s involvement in the decision to prosecute must be more nuanced. In some situations, expert evidence is needed to understand the event being investigated. The issue is not so much whether the expert’s opinion was used by the prosecution in coming to the decision to lay a charge, as in Tang, in which forensic accounting expertise was required, and Live Nation, in which engineering expertise was required. This is not problematic involvement. It is the personal influence exerted by the expert to encourage the prosecution, if any, that is concerning. This is a matter of possible tainting, so it is better if the expert were not involved in the charging decision. [48]

[97] To recapitulate, the cases establish that if the witness’s engagement in the investigation, the decision to prosecute, or the prosecution itself is too intense, in the ways discussed above, impartiality and independence can be lost, rendering the witness obviously unable or unwilling to carry out the primary duty to provide fair, non-partisan and objective assistance to the court. This can result in disqualification of the witness, albeit rarely, or in limits being imposed on the witness’s evidence, and will be taken into account in weighing the evidence. This assessment is intensely contextual and case-specific, as this court noted in Tang.

The Principles Applied

[98] The appellant challenges Ms. Robinson's expert qualification on the ground of independence and impartiality but not her technical qualifications. The appellant’s trial strategy was to seek Ms. Robinson's outright disqualification, but this outcome is rare and pursuing it is somewhat high-stakes.

[99] I turn to consider Ms. Robinson's actions in each of the three stages: the investigation, the decision to charge, and the prosecution itself.

[100] The evidence is clear that Ms. Robinson played no role in the investigation. In compiling her expert report or memorandum she used data generated by the work of others. There is nothing objectionable about this.

[101] There is no evidence that Ms. Robinson played an active role in the prosecution itself, as occurred in McManus and in several other cases. She simply gave her evidence.

The Decision to Prosecute

[102] Ms. Robinson denies playing a role in the Ministry's decision to prosecute the Town. Ms. Robinson’s description of her own work downplayed her influence. The investigating officer was Kyle Mauthe. He testified that Ms. Robinson “was a very important part of the team” in the Midhurst office. He needed her expert opinion in order to lay a charge because he did not have the necessary expertise. He reviewed her report and relied on it. Officer Mauthe agreed that “an important part of the making of that decision [to prosecute] was the memorandum that Ms. Robinson, from Midhurst, prepared for Staff Sergeant Maw”, who was the Manager of the Midhurst Enforcement Unit. He agreed that it would have had “an impact”. Indeed, her report was essential to the prosecution.

[103] I now address several points the appellant raises as especially problematic in the development of Ms. Robinson's report or memorandum that hook into the decision to prosecute. First, Ms. Robinson readily admitted that she feels “very strongly about the recovery efforts in respect of the Piping Plover” and “naturally… protective of the bird”. This feeling is in itself not problematic. One would expect Ministry employees to be dedicated to the Ministry’s mission, just as one would expect police officers to be committed to the control of crime. But that dedication must not compromise a witness’s overriding duty to the court.

[104] I agree with my colleague’s observations at para. 61. In particular, I agree that by working to complete a report at home during her maternity leave, Ms. Robinson showed her conscientiousness. The appellant’s submission that this was a sign of bias is both plainly absurd and offensive.

[105] Second, the appellant focused on the purpose of Ms. Robinson’s report. In cross examination she admitted that the purpose was to brief Staff Sergeant Maw “on whether or not a charge should be laid”. Her view was that the Town’s work violated the Endangered Species Act. She prepared the report for the purposes of enforcement.

[106] Third, the appellant argues that Ms. Robinson was engaged in prosecutorial advocacy. She asked another Ministry biologist, Jodi Benvenuti, to edit the draft report. Initially Ms. Robinson asserted that she was just asking for Ms. Benvenuti’s “technical comments”, but she then agreed that there was more involved:

Q. And what Ms. Benvenuti is doing, is giving you advice there about how to make this document more persuasive for the reader, in this case, Mr. Maw, right?

A. I can – yes.

Q And that's what you actually did in your ultimate report. You selected photographs which you didn't - some of which you did not take, and put them in there in the way that you and Ms. Benvenuti discussed to make the report most impactful, as Ms. Benvenuti says, right?

A. Yes. (Emphasis added.)

[107] Fourth, the appellant points to the email exchange between Staff Sergeant Maw and Ms. Robinson as showing the close link between Ms. Robinson’s development and completion of the memorandum and the laying of the charges against the Town. This shows that she was more heavily influential in the prosecutorial decision than she says.

[108] In terms of the completion of Ms. Robinson’s report, it is helpful to set the relevant events in chronological order:

− In April 2017 and in August-September 2017 the work was done on the beach;

− Around January 11, 2018, Ms. Robinson prepared a draft memorandum to Staff Sergeant Maw, which was edited by Jodi Benvenuti;

− On March 8-9, 2018, Staff Sergeant Maw and Ms. Robinson exchanged emails about revisions to the memorandum;

− On March 21, 2018, Ms. Robinson finalized the memorandum;

− On March 21, 2018, the Town was charged for the April beach work; and

− On July 25, 2018, the Town was charged for the August-September beach work.

[109] The appellant highlights elements of the email exchange between Staff Sergeant Maw and Ms. Robinson:

− March 8, 2018, Staff Sergeant Maw to Ms. Robinson:

I spoke to [Crown counsel Brian] Wilkie today and he was very impressed. He had a couple of comments and suggestions. I have added them as comments on the attached file. He really had 4 suggestions:

Your [role] with this doc is to provide an opinion on whether there the habitat was damaged or destroyed and not about whether that is a violation of the ESA. It just presents you as being more objective.

Speak to the fact that the beach had good plover recruitment this year and maybe some factors that may have assisted with that.

Outline what you are basing your opinion on related to the damage. Mention the package that was sent to you with a brief description of what was in it and other things you relied on. We will disclose the package to defence when charges are laid.

Adding an Ortho Photo of the beach with the nesting locations for the past 10 years would be really helpful as well. [Emphasis added.]

− March 9, 2018, from Ms. Robinson to Staff Sergeant Maw:

Thanks for this. Good comments and they make sense… I’ll work away at this and get something back to you as soon as possible. Next week is March break so I have a little less time during the day but I have some time in the evenings.

− March 9, 2018, from Staff Sergeant Maw to Ms. Robinson:

Sorry to say this, but the soon the better for the changes. We really want to get a decision made and charges laid before the end of March and there will have to be a bunch of fingerprints on this before we get approval. [Emphasis added.]

As noted, the Ministry laid the charge against the Town for the April beach work on March 21, 2018.

[110] Fifth, the appellant points particularly to the portions of the email exchange between Staff Sergeant Maw and Ms. Robinson that show the involvement of the prosecuting Crown, Brian Wilkie, in the preparation of the memorandum. Mr. Wilkie made some suggestions for amending the memorandum, one directed pointedly at the issue of bias. Mr. Wilkie asked Ms. Robinson to delete mention of her opinion that the beach work was “a violation of the ESA.” The reason Mr. Wilkie gave is that: “It just presents you as being more objective”. The appellant submits that this obviously underlines Ms. Robinson’s true perspective as an advocate for the prosecution, which is further borne out by the fact that at one point in the development of her memorandum Ms. Robinson raised the possibility of additional charges under s. 9 of the Act.

Discussion

[111] In his oral reasons, the trial justice limited the application of White Burgess: “I have distinguished the case at bar from the cases presented. I do find – pardon me – the White Burgess case to apply in this case, but in a more limited scope, which I will describe hereafter” (emphasis added).

[112] On this point, the appeal justice rightly observed that the trial justice’s reference to White Burgess applying “in a more limited scope” in regulatory cases required “careful consideration.” She nonetheless upheld the trial justice’s conclusion on the voir dire dismissing the appellant’s challenge to qualifying Ms. Robinson as an expert.

[113] The appeal justice was right to flag the trial justice’s statement as meriting careful consideration. I would go further. While it is open to a trial justice to distinguish particular cases whose facts and circumstances differ, the White Burgess principles operate with equal force in criminal, in regulatory and in civil law contexts.

[114] The trial justice’s findings with respect to Ms. Robinson’s impartiality are entitled to deference, although it is possible those findings were informed by his mistaken view that the White Burgess principles have more limited scope in regulatory settings.

[115] The trial justice considered that the applicable test, drawing on White Burgess, was this: “does the defence have a realistic concern that Ms. Robinson's evidence should not be received because she is unwilling or unable to comply with that duty?” His answer was: “The court has concluded based on the examination the defence has not met its onus in demonstrating a realistic concern, that Ms. Robinson is unwilling or unable to fulfill her duties to this court.”

[116] In my view, the trial justice cited the wrong test. The right test was whether the Crown had demonstrated, on the balance of probabilities, that Ms. Robinson was willing and able to fulfill her overriding duty to the court of providing evidence that would be impartial, independent, and absent of bias. That said, there is little doubt that the trial justice would have found that the Crown had met its onus.

[117] The trial justice’s reasons also suggest several legal misapprehensions on his part. He states:

The most serious – I guess – allegation that the defence has put forward is that Ms. Robinson was involved directly with the decision to lay the charge against the Town of South Bruce Peninsula and ergo, therefore she can't be independent or unbiased.

[118] The trial justice found this suggestion to be “preposterous”. The trial justice stated fairly that “A charge of this magnitude would have been vetted at many levels of the ministry before a charge was laid.” He added: “I think it'd be giving way too much credit for what Ms. Robinson is able to do to accomplish that.” He found the suggestion that Ms. Robinson was “and I'll put this in quotations – ‘instrumental’ in convincing Staff Sergeant Maw, Conservation Officer Mauthe and the Crown prosecutor to lay a charge, is unsubstantiated.”

[119] The trial justice found that the emails and attachments were vetted “to ensure the report was accurate, complete, and professional.” He then added: “There is no evidence, again, that during this email exchange that she directed anybody to do anything.”

[120] The trial judge also found that all of Ms. Robinson’s activities “would come within the duties expected from a Ministry of Natural Resources and Forestry employee”.

[121] I make three observations about the trial justice’s approach. First, in my view, he did not attend directly and with sufficient seriousness to the evidence cited by the defence to show a realistic concern about Ms. Robinson’s partisanship. It was not necessary for the defence (on whom there was no onus) to establish that she was effectively in control of the decision to prosecute in order for the court to conclude that she was unduly partisan.

[122] Second, the trial justice discounted too easily the evidence about the vetting of Ms. Robinson’s draft report, both the purpose for that vetting – to make it more persuasive – and the involvement of Crown counsel – who sought to make the report “more objective”.

[123] In Moore v. Getahun [49], a medical malpractice case, this court considered whether contact between instructing counsel and the retained expert had led to bias. Sharpe J.A. explained: it is "widely accepted that consultation between counsel and expert witnesses in the preparation of rule 53.03 reports, within certain limits, is necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims." [50] In my view, this reasoning applies to criminal and quasi-criminal proceedings. Note the expression “within certain limits”. The issue of limits was not fully canvassed in this case so I will say no more.

[124] Third, there is no doubt that Ms. Robinson comported herself throughout as a faithful Ministry employee doing her duty, but that does not absolve her from taking most seriously her overriding duty to the court. The trial justice implied that Ms. Robinson simply doing her Ministry duty was enough to allay concerns about her partisanship. That is not the law.

[125] All of that said, properly self-instructed, the trial justice would likely have permitted Ms. Robinson to testify, with any touches of partisanship in her evidence going to the weight that it would be accorded. I do not see this as one of the rare cases in which her complete disqualification would be a realistic or even a fair outcome.

[126] As I noted at the outset of this concurrence, I too would dismiss the appeal.

Released: April 22, 2022 “G. Pardu J.A.”

“P. Lauwers J.A.”

“I agree L. Sossin J.A.”

[1] White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 48. [2] The Honourable Stephen T. Goudge, Commissioner, Inquiry into Pediatric Forensic Pathology in Ontario: Report (Toronto: Ontario Ministry of the Attorney General, 2008), online: https://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/report/v1_en.html, [Goudge Inquiry Report] [3] The Honourable Coulter A. Osborne, Q.C., Civil Justice Reform Project: Summary Findings & Recommendations, (Toronto: Ontario Ministry of the Attorney General, 2007), online: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/. [4] White Burgess, at para. 12. [5] Goudge Inquiry Report. [6] Goudge Inquiry Report, at vol. 3, ch. 18, p. 470. [7] Goudge Inquiry Report, at vol. 3, ch. 18, p. 470. [8] Brandon Trask and Evan Podaima, “Blurred Lines: A Critical Examination of the Use of Police Officers and Police Employees as Expert Witnesses in Criminal Trials”, (2021) 44:6 Man. L.J. 48. [9] Trask and Podaima cite the work of Jason M. Chin, Michael Lutsky and Itel E. Dror, “The Biases of Experts: An Empirical Analysis of Expert Witness Challenges” (2019), 42:4 Man. L.J. 21 and Elisabeth Giffin, "Experts for Hire: A Dangerous Practice Which Increases the Risk of Bias and Disadvantages the Accused" (2018) 26 Dal. J. Leg. Stud. 1. [10] At p. 49. [11] Unlike police officers, lay experts with professional credentials such as doctors, geologists, accountants, and engineers have their own professional obligations. These provide additional guarantees of independence, as the court noted in R. v. Live Nation, 2016 ONCJ 223, 130 O.R. (3d) 365, at para. 27. [12] R. v. Mohan, [1994] 2 S.C.R. 9. [13] R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 46-49 per Laskin J.A. [14] David Watt, Manual of Criminal Evidence, loose-leaf (Toronto: Thomson Reuters Canada Ltd., 2021), at para. 29.02. [15] White Burgess, at para. 32. [16] R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 39, leave to appeal refused, [2021] S.C.C.A. No. 263. [17] White Burgess, at para. 32. [18] White Burgess, at para. 48. [19] White Burgess, at para. 48. See also, R. v. Natsis, 2018 ONCA 425, 140 O.R. (3d) 721, at para. 22. [20] An officer’s “passionate” commitment to ending drug trafficking in a case where the charge was one of trafficking was not on its own disqualifying: R. v. Van Bree, 2011 ONSC 4273, at paras. 26-30. [21] White Burgess, at para. 49. [22] White Burgess, at para. 49. See also, Van Bree, where the officer’s evidence on the culture and indicia of drug trafficking was permitted (para. 121), but the conclusory opinion that the accused was trafficking was excluded (para. 127); Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.), where an engineer was able to give evidence on engineering (para. 85) but not on the root causes of the collapse (para. 86); R. v. Natsis, where a police collision investigator was able to give evidence on the observations and measurements he took at the scene, but not the conclusions he drew from them (para. 20). [23] White Burgess, at paras. 49, 54. [24] Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 6, leave to appeal refused, [2017] S.C.C.A. No. 343. [25] Bruff-Murphy v. Gunawardena, at para. 66. [26] 2012 ONCA 297, 291 O.A.C. 62, leave to appeal refused, [2012] S.C.C.A. No. 309. [27] At para. 110. See also, R. v. Soni, 2016 ABCA 231, 37 Alta. L.R. (6th) 271, at para. 23 (accident reconstructionist); R v. Kresko, 2013 ONSC 1159, at paras. 97, 119 (accident reconstructionist). [28] White Burgess, at para. 49 (auditor); R. v. Tang, 2015 ONCA 470, at para. 6, leave to appeal refused, [2015] S.C.C.A. No. 486 (forensic accountant); Soni at para. 18 (police officer as accident reconstructionist); R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 71 (police officer on drug terminology and culture), Mills, at para. 62 (police officer on street gangs), Live Nation, at para. 14 (engineers); R. v. T.A., 2015 ONCJ 624, at para. 20 (police officer on street language in drug context). [29] Live Nation, at para. 20. [30] Live Nation, at para. 20. [31] Tang, at para. 6. [32] Tang, at para. 6. [33] Tang, at para. 6. [34] McManus, at paras. 69-75. [35] David Watt, Manual of Criminal Evidence, loose-leaf (Toronto: Thomson Reuters Canada Ltd., 2021), at para. 29.02 [36] R. v. Livingston, 2017 ONCJ 645, 356 C.C.C. (3d) 514. [37] Livingston, at para. 47. [38] Livingston, at para. 68. [39] Advanced Construction, at para. 53. [40] Advanced Construction, at para. 60. [41] Advanced Construction, at para. 66. [42] Advanced Construction, at paras. 85-86. [43] Advanced Construction, at para. 62. [44] Live Nation, at paras. 28, 43. I note that Nakatsuru J. made an effort, at para. 33, to distinguish Advanced Construction on the basis that the expert in that case breached the witness-exclusion ruling, but I do not read Knazan J. so narrowly. His decision to limit the expert’s evidence took account of the expert’s overall engagement in the prosecution. [45] R. v. Tesfai, 2015 ONSC 7792. [46] Tesfai, at para. 14. [47] T.A., at para. 21. [48] T.A., at para. 21, approved in McManus, at para. 67. [49] Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, leave to appeal to refused, [2015] S.C.C.A. No. 119. [50] Moore, at para. 49.