Monday, April 11, 2011

Expert evidence -- the test for admission is still Mohan?

R. v. Boswell, 2011 ONCA 283 released today references Abbey in the context of expert evidence but relies on Mohan. To my mind, the Mohan test still governs:

(1) Test for Admission of Expert Evidence

[13] The test for the admission of expert evidence is well-established and undisputed on this appeal. At the first stage of the admissibility inquiry, the party seeking to tender expert evidence must establish on a balance of probabilities that the proffered evidence is: (1) relevant; (2) necessary; (3) not subject to any applicable exclusionary rule; and (4) to be advanced through the testimony of a properly qualified expert. Where these four preconditions to admissibility are satisfied, the second stage of the admissibility inquiry obliges the trial judge to engage in a contextual weighing of the probative value and significance of the proffered evidence to the case against the potential prejudice that could flow from its admission. See R. v. Abbey (2009), 97 O.R. (3d) (C.A.), leave to appeal refused (2010), 409 N.R. 397 (note); R. v. Mohan, [1994] 2 S.C.R. 9.

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