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57 Alta. L. Rev. 1 (2019-2020)

handle is hein.journals/alblr57 and id is 1 raw text is: 

                 THE IMPACT OF WHITE BURGESS IN ALBERTA DECISIONS

                                BACK TO BURGESS:
                     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].

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