"Of Gatekeepers and Thresholds"- Reviewing Minister of Community Services v J.M. & R.R
Drug testing is an important part of our justice system and can play a role in both criminal and civil matters. Legally trained professionals often lack qualifications in the sciences. Consequently, courts rely on experts in the field to do the necessary testing, reporting, and if applicable, giving testimony in court. The modern principled approach for admitting expert opinion evidence was developed in R v Abbey (2009)<1> and affirmed by the Supreme Court of Canada in White Burgess Langille Inman v Abbot and Haliburton Co. (2015), it consists of a threshold analysis on the four factors developed in R v Mohan (1994) in step one, followed by the second gatekeeper step, in which the trial judge weighs the benefits against the costs of admitting the evidence in regard: logical relevance, necessity, absence of bias, and reliability. <2> Recently the case of: Minister of Community Services v J.M. and R.R. 2018 NSCA 71, highlights the nuances here and serves to clarify this area of the law and demonstrate proper application.
Beginnings and Experts
The case began with a child protection proceeding. The Minister demonstrated that the drug use of the parents, J.M. and R.R., was a safety risk for the child. Following this, R.R. continued to test positive for cocaine, while J.M. tested negative. <3> Forgerson J found that the lab lacked forensic accreditation<4> and suggested that R.R. be tested at another lab. <5> Only after this, did R.R. argue on the point of forensic accreditation. <6> In the end, Forgerson J chose not to allow the evidence tendered by Dr. Nasser, stating that it was unreliable due to lack of oversight.<7>
The Minister appealed this decision on several grounds; including Forgerson J’s incorrectly applied expert opinion evidence analysis. The Minister fears the trial decision could destabilize the status-quo of the current drug testing regime in Nova Scotia. <8> Drug testing in Nova Scotia, for this purpose, habitually takes place at the Queen Elizabeth II Hospital (QEII), the trial judge’s verdict calls into question the validity the lab’s test results and cases decided based on those results. <9>
In his decision Bryson JA, indicates that Forgerson J identified the relevant law but failed to properly apply it to the issues. <10> After laying out the most recent formulation of the expert opinion evidence test from R v Abbey (2017). <11> Bryson JA identified that issues in the analysis began when Forgerson J conflated the qualifications of Dr. Nasser and the reliability of the QEII lab’s results as being part of the same legal issue. <12> Forgerson J cited R v Abbey in her reasons, falsely believing that the expert in that case was dismissed during the initial threshold stage of the analysis; the expert was actually dismissed during the gatekeeper stage. <13> Consequently, Dr. Nasser’s qualifications were never reviewed, <14> the appeal court found him more than qualified to speak of the positive test results at issue. <15> Forgerson J also expressed concern over Dr. Nasser’s directorship of the QEII lab and cited this relation as a reason to dismiss his evidence on the grounds that he was not an impartial expert. <16> Bryson JA cited the appellate level White Burgess case at this stage of his analysis. In his decision, Cromwell JA stated that questioning an expert’s objectivity was not a prima facie matter; he delineated that exclusion under this criterion would only occur in exceptional instances, where the expert clearly refused to provide fair and balanced evidence. <17> Anything less than this high bar does not go to exclusion of the expert witness, instead, it will be incorporated into the weighing of the evidence.
Dr. Nasser followed the rules of court and verbally acknowledged the responsibilities related to impartiality that he took on in his role as an expert witness. With no other evidence in support of Forgerson J’s point, she was wrong to dismiss the evidence on the basis that Dr. Nasser was director of the lab. <18>
Having dealt with issues surrounding the expert’s qualifications, Bryson JA moved on to consider Forgerson J’s fixation on forensic accreditation and the findings in The Lang Report. <19> The Lang Report was not evidence in this trial, the only mention of the report was in Dr. Nasser’s own testimony, in which he specifically highlights that the QEII lab employs urine analysis techniques that are recommended by the report and consequently quite different from the unreliable analytical techniques at issue in the report. <20>
The trial judge’s concern over forensic accreditation was unfounded, forensic accreditation is not required, and no evidence was offered to question the reliability of the QEII lab’s results. <21> In fact, in the evidence the lab followed proper forensic protocols. <22> Bryson JA allowed the appeal by the minister and ordered that the positive drug results be admitted in the child protection proceedings. <23>
Correcting Errors at Trial
Forgerson J improperly dismissed the expert’s evidence at the threshold stage, contrary to the established precedent of examining such issues at the gatekeeper step. The consequence of this was a failure to perform the gatekeeper step of the analysis. This case demonstrates how valuable the principled approach is in expert opinion evidence. The adaptability of the second stage of the test allows for flexibility in the admissibility of expert opinion evidence in a case specific manner, a feature that enhances trial fairness.
It is also clear just how dramatically the trier of fact can influence the outcome of a case when erring in their analysis. Here, the appellate level performed its duties in clarifying and restating the current state of the law, overturning a decision that if left unchecked may have caused issues with past, present, and future cases where drug testing evidence from the QEII is at issue.
1 Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant – The Law of Evidence, 5th ed (Toronto: LexisNexis Canada Inc., 2018) from §12.51.
2 Ibid., from §12.53 and §12.54.
3 Minister of Community Services v J.M. and R.R. 2018 NSCA 71 at paras 2-4, Bryson JA.
4 Ibid., at para. 5.
5 Ibid., at para. 30.
6 Ibid., at para. 30.
7 Ibid., at para. 5.
8 Ibid., at paras. 6-7.
9 Ibid., at para. 12.
10 Ibid., at para. 16.
11 R v Abbey 2017 ONCA 640 at para. 48, Laskin JA.
12 Minister of Community Services v J.M. and R.R. 2018 NSCA 71 at para. 17, Bryson JA.
13 Ibid., at para. 19-21.
14 Ibid., at para. 23.
15 Ibid., at para. 26.
16 Ibid., at para. 24.
17 White Burgess Langille Inman v Abbot and Haliburton Co. 2013 NSCA 66 at paras. 47-49, Cromwell JA. Affirmed by the Supreme Court of Canada.
18 Minister of Community Services v J.M. and R.R. 2018 NSCA 71 at para. 29, Bryson JA.
19 Ibid., at paras. 32-34.
20 Ibid., at paras. 4, 35 & 40.
21 Ibid., at para. 43(b).
22 Ibid., at para. 35.
23 Ibid., at para. 55-56.