![handle is hein.journals/alblr57 and id is 1 raw text is:
THE IMPACT OF WHITE BURGESS IN ALBERTA DECISIONS
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THE IMPACT OF THE WHITE BURGESS
EXPERT EVIDENCE REGIME IN ALBERTA DECISIONS
LISA A. SILVER*
The law on the admissibility of expert evidence was refined in the Supreme Court of
Canada's White Burgess decision. While still retaining the Mohan criteria, the Supreme
Courtfurther defined the trial judge as an agent of change through an enhanced gatekeeper
function. However, all stakeholders in the justice system have a gatekeeper function and
must work together when determining the use to be made of evidence. Through surveying
Alberta cases involving expert evidence, the author identifies areas where lower courts are
applying the new approach and where they do not fully embrace the new approach, but
revert back to the traditional Mohan criteria. The author discusses notable themes from
recent case law to identifypotentialfuture issues involving expert evidence. Although slowly,
Alberta courts are applying the new regime, and the focus and direction of expert evidence
continue to develop.
TABLE OF CONTENTS
I. INTRODU CTION ............................................... 1
II. THE INNOVATION FACTOR ...................................... 3
A. THE FIRST PRINCIPLES OF OPINION EVIDENCE .................... 3
B. SCOPING OUT THE SCOPE .................................... 8
C. THE TwO-STEP PROCESS .................................. 10
D . W EIGHT M ATTERS! ...................................... 19
E. THEMES OF INNOVATION ARISING FROM CURRENT
ALBERTA CASE DEVELOPMENTS ............................. 20
III. THE INFLUENCE FACTOR ...................................... 24
IV. BRINGING IT ALL TOGETHER: CONCLUSIONS
ON THE IMPACT OF THE NEW REGIME IN ALBERTA .................... 27
I. INTRODUCTION
The law on the admissibility of expert evidence and the subsequent application of that law
have evolved due to the combined effect of three Supreme Court of Canada decisions: R. v.
Sekhon,' White Burgess Langille Inman v. Abbott and Haliburton Co. ,2 and R. v. Bingley.3
They provide a high-level view of the potential powerful effect of expert evidence and the
desire of the Supreme Court to restrain and contain that power. In particular, the White
Burgess decision synthesizes previous case law and academic scholarship on the issue. It
constructs a unique platform in which to apply those traditional and well-accepted rules of
evidence. Through this case, the Supreme Court is not altering the landscape as much as it
is refining the raw material by articulating a step-by-step approach for both the trial judge
Assistant Professor, University of Calgary, Faculty of Law; BA (Econ UWO); LLB (Osgoode); LLM
(Calgary); and of the Bars of Alberta & Ontario.
2014 SCC 15 [Sekhon].
2 2015 SCC 23 [White Burgess].
3 2017 SCC 12 [Bingley].](ViewImageLocal?handle=hein.journals/alblr57&div=1&collection=&method=preview&ext=.png&size=3)
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