R v Turpin: Revising Admissibility of Expert Opinion Evidence in NB - W. McArthur
R v Turpin: Revising the Law Surrounding the Admissibility of Expert Opinion Evidence in New Brunswick
by Weston McArthur
In the Ontario Court of Appeal’s 2017 decision in R v Abbey, the court articulated the test for the admissibility of expert opinion evidence. First, the evidence must be “relevant,” “necessary to assist the trier of fact,” “not be subject to any exclusionary rule,” and “the expert must be properly qualified.” That criteria emerged out of the Supreme Court of Canada’s (SCC) ruling in R v Mohan (Mohan). Second, the trial judge must exercise “a gatekeeper role” per the SCC’s decision in White Burgess Langille Inman v Abbott and Haliburton Co (White Burgess). The trial judge should exclude the evidence where the “potential risks” of admitting it exceed the “benefits.” The Canada Evidence Act (CEA) is a federal statute that also regulates the admissibility of expert opinion evidence. Section 7 of the Act provides that both parties in litigation may call no more than five experts unless they obtain “leave of the court or judge or person presiding.” Many courts across the country have interpreted the provision to apply to the whole of proceedings.
The New Brunswick Court of Appeal’s (NBCA) 2019 decision in Turpin v R (Turpin) changed the law regarding the admissibility of expert opinion evidence in New Brunswick. This had several positive consequences. First, the court laid out a new comprehensive framework for trial judges on how to apply that. Another was bringing New Brunswick jurisprudentially in line with the other provinces among other things.
For decades, the NBCA followed a different approach regarding its interpretation of s.7 of the CEA that emerged out of that court’s 1979 decision in R v Higgins (Higgins). The NBCA ruled that the restriction on parties to five experts meant “no more than five per issue.” Thus, if a case had two issues, then ten experts in total could be called with five being permitted to testify on an issue. In addition, the court in Higgins declared that parties did not need leave of the court to call more experts than the statute allowed.
More than forty years later, one of the central issues in the appeal of Turpin v R (Turpin) from the New Brunswick Court of Queen’s Bench (NBQB) concerned the NBCA’s ratio in Higgins. Kennedy Corrigan was a two-year old child who was mysteriously injured to such a point that she died. James Turpin was later accused of second-degree murder of Corrigan. At trial, the Crown wanted to call multiple experts. They ultimately ended up calling twelve, with eight of those testifying on how Corrigan could have been injured. In the end, Turpin was convicted of second-degree murder and subsequently appealed.
The NBCA ultimately quashed the NBQB’s decision and ordered a new trial. The court also overruled its ratio in Higgins. In Higgins, the NBCA relied on the SCC’s 1958 decision in Ure v Fagnan, which concerned the interpretation of s.10 of the Alberta Evidence Act. In that provision, the maximum number of experts that could be called for trial was three. The NBCA argued that in its 1979 decision it had ignored key differences in the language between the provincial and federal evidence acts. Section 10 of the Alberta legislation did not allow for a party to apply for leave with the court to call more experts, while s.7 of the federal act does. The NBCA noted that this difference was pivotal to the SCC ruling that the maximum number of experts that could be called was to be restricted per issue rather than applying to the whole of proceedings. Another problem with Higgins that the NBCA observed in Turpin was that it had wrongly read out the statutory requirement for parties to apply for leave with the court if they wished to call more than five experts. The NBCA explained that what should have happened in the lower-level proceeding was that the NBQB judge should have refused the entry of the sixth Crown expert, and the Crown should have had to apply for leave with the court to admit more experts.
One of the reasons that this is a significant decision is that the NBCA laid out a comprehensive framework regarding the admissibility of expert opinion evidence in New Brunswick. First, the NBCA stated that courts should begin with the Mohan/White Burgess analysis. The number of experts that can be called is also restricted by s.7 of the CEA in line with the court’s reinterpretation of that provision. If a party applies for leave to call more than five experts, the NBCA outlined a series of factors from White Burgess that courts should consider before granting or denying it. The court in Turpin carefully stressed that flexibility underlies this analysis. The trial judge has discretion, and the surrounding context of the whole trial may determine what factors should be considered in answering if leave should be granted or denied.
There are several other reasons why this NBCA decision is important. For instance, Turpin brings New Brunswick jurisprudentially in line with many other courts from across the country regarding the interpretation of s.7 of the CEA. The NBCA’s ruling also helps tackle a problem that comes from the excessive use of experts in trial. In Turpin, the court observed that when too many experts are called, there is a danger that the jury will give too much deference to the expert’s findings and resultingly may be not as engaged with the case’s material. Third, the NBCA’s decision grants the trial judge flexibility regarding the admittance of additional expert opinion evidence where they believe it is warranted. In connection, Turpin forces counsel to pick their experts carefully, which will hopefully help reduce the amount of “‘junk science’” in the courtroom. It will also work to ensure that the quality of the opinion evidence that parties offer is the best that they can make available. Lastly, the NBCA’s decision is a victory for judicial economy. Where more experts are called, a trial will likely last longer. Reduced trial length means that more trials can get done within the same period, which means more access to justice for New Brunswickers.
Bauer Hockey Ltd v Sport Maska Inc (CCM Hockey), 2020 FC 624.
Canada Evidence Act, RSC 1985, c C-5.
Elizabeth Fraser, “Crown decides conviction won’t happen for man accused in toddler Kennedy Corrigan’s death (1 April 2021), online: Canada Broadcast Corporation < https://www.cbc.ca/news/canada/new-brunswick/james-turpin-kennedy-corrigan-manslaughter-1.5971873>.
Elizabeth Fraser, “Toddler’s injuries not consistent with minor fall, 2 experts testify at James Turpin trial” (24 March 2021), online: Canada Broadcast Corporation <https://www.cbc.ca/news/canada/new-brunswick/kennedy-corrigan-james-turpin-manslaughter-trial-1.5961762>.
Paul C Giannelli, “Forensic Science: Daubert's Failure” (2018) 68:3 Case W Res L Rev 869.
Porto Seguro Companhia de Seguros Gerais v Belcan SA,  SCJ No 112, 1997 CarswellNat 2071.
R v Abbey, 2017 ONCA 640.
R v Higgins,  NBJ 277, 1979 CarswellNB 85.
R v Short, 2019 ONSC 1180.
Sidney N Lederman, Alan W Bryant & Mitchell K Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada Inc, 2018).
Songhees Nation v British Columbia, 2016 BCSC 86.
Turpin v R, 2019 NBCA 78.
Endnotes  Sidney N Lederman, Alan W Bryant & Mitchell K Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada Inc, 2018) at 838-39; R v Abbey, 2017 ONCA 640 at para 48 [Abbey].  Abbey, supra note 8 at para 48.  Ibid.  Ibid.  Ibid.  Canada Evidence Act, RSC 1985, c C-5 s 7.  Ibid.  Bauer Hockey Ltd v Sport Maska Inc (CCM Hockey), 2020 FC 624 at para 27 [Bauer]; R v Short, 2019 ONSC 1180 at paras 10-13 [Short]; See Songhees Nation v British Columbia, 2016 BCSC 86 [Songhees]; Turpin v R, 2019 NBCA 78 at para 32 [Turpin].  Turpin, supra note 7 at para 27; R v Higgins,  NBJ 277, 1979 CarswellNB 85 at para 11 [Higgins].  Turpin, supra note 7 at para 27; Higgins, supra note 8 at paras 11-12.  Turpin, supra note 7 paras 1, 13; Elizabeth Fraser, “Toddler’s injuries not consistent with minor fall, 2 experts testify at James Turpin trial” (24 March 2021), online: Canada Broadcast Corporation <https://www.cbc.ca/news/canada/new-brunswick/kennedy-corrigan-james-turpin-manslaughter-trial-1.5961762>; Elizabeth Fraser, “Crown decides conviction won’t happen for man accused in toddler Kennedy Corrigan’s death (1 April 2021), online: Canada Broadcast Corporation < https://www.cbc.ca/news/canada/new-brunswick/james-turpin-kennedy-corrigan-manslaughter-1.5971873>. As of 1 April 2021, the Crown filed for a stay of proceedings.  Turpin, supra note 7 at paras 18-21.  Ibid at paras 22-24.  Ibid at para 26; Higgins, supra note 8 at para 11.  Turpin, supra note 7 at paras 38, 41, 55.  Ibid at paras 41, 55.  Ibid at paras 45-49.  Ibid at paras 49, 60-61.  Ibid at paras 32, 42; Bauer, supra note 7 at para 27; Short, supra note 7 at paras 10-13; See Songhees, supra note 7.  Turpin, supra note 7 at para 61.  Paul C Giannelli, “Forensic Science: Daubert's Failure” (2018) 68:3 Case W Res L Rev 869 at 871.