ORDINARY EVIDENCE AS GOOD AS EXPERT EVIDENCE IN EVALUATING MENTAL INJURY:
A STEP FORWARD IN CANADA
Expert evidence has historically been considered significant and necessary in making the decision-maker understand subject matter beyond the general experience of an ordinary person. Personal injuries are routinely explained by experts in the courts and tribunals. Some tribunals such as workers compensation boards are expert tribunals in the sense that they exclusively deal with injuries. These boards employ doctors on an ongoing basis to advise on files as they develop. Similarly in CPP disability cases, the tribunal regularly uses medical opinion in deciding whether a disability is “severe and prolonged.”
Psychiatrists and psychologists are hired in criminal cases as well, to test the defence relating to an accused not being criminally responsible, by failing to appreciate the nature and quality of his acts. Even where a greater sense of understanding the nature and consequences of one’s acts exists, defences could arise. In Lavallee, the battered wife syndrome was recognized by the Supreme Court of Canada, as a psychiatric explanation of why a wife would suffer beatings on the part of a husband and yet not leave him. This was a factor that needed to be explained in order for the court to carve out the defence of the syndrome to show justification of a battered wife killing her husband in self-defence. The case showed how the temporal imminence of threat to life that raises the defence is qualitatively different for such a battered wife when compared to an ordinary person. Psychiatric expertise was necessary and valuable.
Expert testimony has sometimes proven to be the bane of the legal system, and is always a cumbersome process. Wrongful conviction cases under the misguided expert testimony of the pathologist Charles Smith had a horrendous impact on criminal justice in Ontario in the 1990s. The doctor’s flawed explanations of baby deaths by falsely attributing them to criminal intent of their parents on easily accepted expertise, resulted in a remarkable travesty of justice.
Time has shown the halo effect of experts in courts in many cases which have been reversed on appeal, as those in which Dr. Smith testified, after the innocent served several years of jail time. In the wake of such status of expert evidence, the Supreme Court of Canada’s decision in Saadati v Moorhead decided June 2, 2017, comes as a welcome change to the traditional reliance on expert evidence on matters considered complex. The court stated that a trial judge was correct in relying upon the non-expert evidence of lay witnesses in explaining the change of personality of an injured person who was claiming damages resulting from a series of accidents. The absence of a psychiatric diagnosis did not affect the court’s decision since it was not considered necessary to have a psychiatrist testify and provide expertise on personality changes after an accident. The court held that personality changes can be understood and explained by the family members who can testify to such changes, and help the court as much as a psychiatrist.
The case is a tremendous advancement in judicial thinking that has wide application. An expert is endowed with knowledge that in the absence of contradictory explanations can be endorsed without proper understanding and appreciation by the judicial body, of the circumstances under which the expert evidence has reached her conclusions. Though new rules, as in Ontario, have expanded the need to show true expertise by requiring the expert to sign a statement professing neutrality, and to state the assumptions of those conclusions, such evidence often poses a special difficulty for justice to be delivered. Its one-sided character is often a problem when no other expert testifies.
A litigant of modest means cannot match a hired gun by a wealthy opponent. Saadati enables lay witnesses to prove a complex case. Applying this notion to a wider range of personal injury cases, and to non-personal injury cases, opens the door to a greater understanding of evidence even when an expert has not testified. By focusing on the evidentiary value of such lay testimony, the highest court has undercut the perceived need of an expert which most would consider necessary, given the general complexity around the onset of mental illnesses. The court applied common sense in endorsing the reasoning supported by lay evidence of the family members that nothing else except the accident could have caused significant personality changes from an outgoing humorous person to one who became depressed and withdrawn.
One of the greatest challenges in litigation for a party of modest means is to have the cumulative value of lay witnesses count as much as an opposing expert in the overall weight accorded to such evidence. A courtroom can be overshadowed by paid experts whose articulation of their own subject matter often beats their cross-examination due to complexity that is often hard both to understand and to convey, specially to lay members of a jury. Saadati should be used to offer the balance wherever possible. The trial court had granted a judgment of $100,000 for the negligence in causing an accident to the plaintiff. The Supreme Court overturned British Columbia’s Court of Appeal, which had considered a psychiatric diagnosis to be necessary in establishing change of personality as evidence of debilitating and compensable mental injury. The test in tort law for such a claim was stated as a “serious and prolonged” injury, which is similar to the test of “severe and prolonged” under CPP disability in Canada. The Supreme Court also significantly noted that the legal tests for both physical and mental injuries are the same. By this reasoning, no special label of necessary experts need attach to dealing with mental state issues that can be attested to by lay witnesses to obtain judicial relief, provided the evidence holds.
Psychiatric diagnosis under the Diagnostic Standards Manual used by psychiatrists under standards accepted by their field, and psychiatric expert evidence, may be valuable in many cases, but the decision is a step forward in rejecting a monopolistic dominance of the psychiatrist in addressing the legal issues arising from an injury of the brain. This reasoning is certainly beneficial to undercutting in appropriate cases the often unquestioned command of expertise in a court or tribunal.
Timely use of lay witnesses to prove issues shown to be relevant by ordinary intelligence, in lieu of an expert, in complex cases, is an important factor in the decision-making process and in trying to ensure justice based on facts. Saadati should bring us closer to a strong commonsensical judicial system where justice must not be usurped by the shadow of knowledge-labelled experts, as the tragedy of Charles Smith’s repeatedly failed testimony in many cases revealed. Also, the cost of unnecessary experts testifying is specially important, since civil justice reform is a constant challenge and affordable justice is hard to come by. According to a recent study reported in the American Bar Association Journal, 86 percent of low income Americans’ civil and legal issues get inadequate or no legal help, for example. Similar studies in Canada show substantial inadequacy of our legal system to deliver civil justice to the financially disadvantaged that neither qualify for legal aid, nor have sufficient income to pursue civil remedies.
The court did not address a potential issue arising from accident cases before Workers Compensation Boards where a single work accident is often needed to be determined as the cause of the injury to be compensated under workers compensation legislation. Nevertheless, nothing prevents an applicant from arguing the rationale of the decision as appropriate in discounting the value of experts and proving a case with lay witnesses through ordinary experience in a tribunal. An expanded application of the case outside the realm of personal injury in the general law should lead to greater access to justice by less reliance on expensive expert testimony, and greater confidence in ordinary people proving even extra-ordinary cases by ordinary means.