R v Livingston: Bias, I presume?

Canadian courts are increasingly interested in the bias (and partiality and non-independence) of expert witnesses. An Ontario trial court’s recent decision in Livingston to exclude a computer expert is an excellent example of that trend (or what anecdotally seems like a trend). In this note, I’ll go over Livingston and try to explain its significance.

Background

The factual context of Livingston is nearly as interesting as the law. David Livingston was Dalton McGuinty’s chief of staff. He was recently found guilty of deleting e-mails about the Liberal Party’s plans to build powerplants in Oakville and Mississauga before the 2011 elections (offending section 430(5)(a) of the Criminal Code for attempted mischief to data and 342.1 for unauthorized use of a computer).

My interest is in one of the experts who would have provided evidence about the deleting of those e-mails. That expert is Robert Gagnon, a former member of the Ontario Provincial Police (OPP). He served with the OPP for 30 years, which included helping them network their offices and pioneering many of their computer-related forensic practices. In short: he had a great deal of experience but deep allegiances to the police. In 2012, he got pulled out of retirement to work on the investigations that led to the charge against Livingston (and Laura Miller, who eventually saw her charges dismissed). Here is the trial judge’s description of the evidence Gagnon sought to provide:

The Crown is offering Mr. Gagnon as an expert to provide fact-specific, particularized opinion evidence on crucial issues in this trial which bear upon the guilt or innocence of the defendants. These issues relate to whether emails were deleted from government computer hard drives and whether the defendants were responsible for deleting emails which ought not to have to have been deleted. This type of evidence goes well beyond a generic overview of computer mechanics outside of the Court’s knowledge.

Gagnon’s Bias?

Livingston’s lawyers challenged Gagnon for bias because he was deeply involved in the investigation and said some things that indicated he wasn’t looking at the facts objectively. For example:

  • He wasn’t siloed off on his particular task. He was involved in strategic meetings and had the full run of the OPP HQ.

  • He was involved in at least one meeting in which the team discussed witness interviews and judicial orders that were required.

  • He was on-call with other members of the team when they needed technical advice, including for getting search warrants.

  • He provided advice on legal strategy, such as how to authenticate evidence under the Canada Evidence Act. He suggested the “mischief in relation to data” charge.

  • He had input on questions asked of witnesses.

  • He described himself as the “point man” for the task of retrieving data off Livingston’s Blackberry and advised on whether steps could be taken outside of the search warrant.

  • In one e-mail exchange with an officer, he commented on a recent finding made by the team, saying “we are golden!”

  • Despite this, he stated the he understood that his duty was one of impartiality – to find inculpatory or exculpatory evidence.

Excluding Gagnon

The Court quoted the recent enunciation of the expert rules in the 2017 R v Abbey decision, which is a succinct and useful statement. It also relied heavily on the Court of Appeal for Ontario’s recent decision in R v McManus and that case’s review and interpretation of the Supreme Court’s 2015 decision in White Burgess Langille Inman v Abbott and Haliburton Co.

White Burgess is widely known for clarifying that bias, partiality and non-independence not only go to the weight of expert evidence, but the admissibility. I will just refer to these elements generically as bias (and, in fact, courts tend to conflate the concepts). White Burgess said that there are two points at which courts can consider bias twice when enforcing the expert rules:

(1) Experts can be excluded under Mohan’s properly qualified expert criterion. More specifically, if the party challenging the expert raises a realistic concern of bias, the onus shifts to the party tendering the evidence to establish a lack of bias. The White Burgess Court noted that exclusion at this threshold stage was a high bar:

I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

(2) Experts can also be excluded for bias at the discretionary costs and benefits weighing stage of the expert evidence analysis.

Moreover, the trial judge in Livingston quoted McManus for its guidance on police witnesses. In particular, there is a heightened concern about their impartiality (citing R v Tesfai and R v TA).

Applying those guidelines, the Court excluded Gagnon. First, the trial judge noted that Gagnon’s longstanding relationship with the OPP raised heightened concerns about his impartiality, but would not be enough to exclude him. Further, the expert did seem to understand the duty of experts and it was a promising sign for his impartiality that he was given an office separate to that of the rest of the team. Those assurances, however, were not enough. In fact, Gagnon became part of the team: he helped with search warrants, he provided general investigative advice, and he made that problematic “we are golden” comment. At one point, he even said that that the believed the facts supported the charges that were planned.

Importantly, the trial judge noted that the case diverged from those in which there might be questions about impartiality but in which the expert is provided less interpretive evidence (the Crown counsel “could not ‘foreclose the possibility’ that another expert could come to different conclusions” about the facts). In other words, the trial judge seemed to be saying that bias looms larger when the expert’s opinion involves more judgment and subjectivity.

In the end, there was a realistic concern of bias based on Gagnon’s involvement and comments. The Crown did not rebut this and thus Gagnon’s evidence was inadmissible.

What is going on here?

The trial judge in Livingston said the case was “one of those rare cases” where the expert should be excluded for bias at the threshold stage. A deeper look suggests why that was the case and what that might mean for expert evidence law going forward.

First, it does seem that courts – these days – are at least more open to arguments about an expert’s bias (See also R v Fabos; McManus; JP v BC). These cases, however, seem to want something more than an expert’s alignment with one side, however deep that alignment that may be. Rather, they seem to be looking for some demonstration of bias. In Livingston, Gagnon’s own e-mails demonstrating the thrill he got out of finding incriminating information seemed especially important to the trial judge (and in McManus, the police officer expert expressed a preconceived belief that the accused was a drug trafficker). I’m not sure this should be the case though. In many situations there simply won’t be such a smoking gun and years of psychological research persuasively demonstrate that bias deeply impacts our thinking in ways we can’t verbalize. Alignment with one party should be enough in some cases.

Second, the Court in Livingston indicated that bias was especially troubling given the complicated and subjective task that Gagnon was performing. This rings true for me, but it’s not something that courts usually say. The implicit message appears to be that the more points at which the expert can exert some kind of subjective judgment, the more chances there are for bias to affect his conclusions. Further, in such a technical task, there is more of an information asymmetry whereby the factfinder has to simply take the expert’s (possibly biased) word for it.

Finally, the Court’s analysis in Livingston was very contextual (see also McManus). It was live to the importance of the evidence to the Crown’s case and thus the impact bias could have. Therefore, we might expect that if the Crown is simply attempting to admit evidence of some minor technical detail, courts might tolerate a bit more bias. Generally, this makes sense, but I would express a bit of caution. Sometimes it is hard to tell how important a piece of evidence is going to be and a little bias can taint other evidence.

References

  • JP v British Columbia (Children and Family Development), 2017 BCCA 308

  • R v A(T), 2015 ONCJ 624

  • R v Abbey, 2017 ONCA 640

  • R v Fabos, 2015 ONSC 8013

  • R v Livingston, 2017 ONCJ 645

  • R v McManus, 2017 ONCA 188

  • R v Mohan, 114 DLR (4th) 419.

  • R v Tesfai, 2015 ONSC 7792

  • White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23