How would you like it if big brother appointed the intrusive Public Guardian and Trustee, to manage/control your life?

If this is Constitutional, then I am in fact CRAZY !

If you were a juror in the matter and you observed the following hearing, would you grant the state the opportunity to essentially violate every single freedom an individual is supposed to enjoy as a matter of right?

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 A hired gun like Dr. Margulies is not a credible witness.

On October 1, 2008, the Honourable Mr. Justice Stephen Goudge released his comprehensive Report of Inquiry into Paediatric Forensic Pathology in Ontario, which found significantly flawed procedures had contributed to several significant wrongful convictions for the murder of children in the province. In reviewing the system of paediatric forensic pathology in Ontario, Commissioner Goudge found that the pathological conclusions of certain Crown experts and the oversight of those experts by governmental authorities were fundamentally flawed in numerous instances.

Clearly, the advocacy of Dr. Margulies is equally flawed and instead of embracing his faulty conclusions, it is therefore the responsibility of the authorities to challenge them.

Commissioner Goudge recommended that coroner experts should avoid offering opinions in Court proceedings that do not fall within their expertise, for the reason that those opinions may be accorded undue weight simply because they emanate from the coroner's office itself.

Commissioner Goudge also recommended that the Crown and defence approach the evidence of forensic pathologists by first ensuring that they undetstand the scope and limitations of the presenting forensic pathologist's expertise and opinions. Crown and defence counsel are also advised to exercise care not to ask questions that might invite forensic pathologists to speculate or to stray outside of their expertise or the outer boundaries of the science.

Extrapolating the lessons of the inquiry beyond the criminal bar, Commissioner Goudge's recommendations are equally applicable to civil litigation practices where it is important to extend increased vigilance to the role of medico-legal experts who offer opinions that do not fall within their expertise.

Many litigators have experienced trials where experts for one party adopt a subjective, partisan and overtly adversarial role in litigation

For instance, in some expert reports, the expert has a tendency to cross the line between providing objective scientific evidence to support a particular party's theories and instead engages in outright advocacy on behalf of that party. Not only does such overreaching tarnish the credibility of the expert, it also makes the role of adjudication that much more difficult for the trier of fact.

Recently introduced amendments to the Rules of Civil Procedure should present an opportunity for the Court to reassert its traditional expectation that experts provide fair, objective and non-partisan opinion evidence useful for the adjudication of the matters at issue. More specifically, in January 2010, new rule 4.1.01(1) will be added to the Rules of Civil Procedure to clarify the specific role of experts in civil proceedings. This rule will provide that:

It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these Rules, (a)To provide opinion evidence that is fair, objective, and not partisan;
(b)To provide opinion evidence that is telated only to matters that are within the expert's area of expertise; and
(c)To provide such additional assistance as the Court may reasonably require to determine a matter in issue.
In case there is any doubt as to the Civil Rules Committee's desire to eliminate the overlap between experts and advocates, supplementary rule 4.1.01(2) provides that "the duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged."

From a practical standpoint, starting in January 2010, experts retained by a party in civil proceedings will be required to sign a new Form 53, which is designated as an acknowledgment of the expert's duty of impartiality. An expert's report will not be considered complete and admissible by the Court unless this Form 53 is signed by the expert.

Additionally, Rule 53 (Evidence at Trial) will be amended to codify the minimum expectations for the formal content of expert reports for use at trials in Ontario. Experts will now be required to state in their expert report their specific qualifications relevant to their opinion evidence; specific instructions given by counsel who had retained them; the nature of the opinion being sought; their opinion on each issue in the litigation, and their specific reasons for opinion, including assumptions, research and documents relied upon in the action.

One expected outcome of this reform of the Rules of Civil Procedure in relation ro experts is that the trier of fact will have greater latitude to elicit further opinion evidence from the expert above and beyond what is elicited in the examination of chief and cross-examination. This is envisioned within the rule4.1.01(l)(c). It is thus to be anticipated that the trier of fact will have the opportunity to resolve any outstanding concerns or doubts with respect to the expert's opinion evidence. Ir will be very interesting to see how the case law in relation to the new rule 4.1.01(1) considers whether an expert's opinion evidence is fair, objective and non-partisan. One might imagine that a winning party's expert's non-adherence to such strict grounds could easily form the basis on grounds of appeal for the losing part)' in a civil proceeding.

Most of the above articlle, excluding reference to Dr. Margulies, is a product of the research of Jeffrey Percival, a civil litigator with extensive practical experience in commercial and civil litigation.