R. v. Bodenstein, 2011 ONCA 737 is a useful example of the Court of Appeal applying the traditional test for expert evidence in the context of soft sciences and criminal law. It is worth noting that Abbey is not mentioned:
[4] The appellant also submits that the trial judge erred in admitting the expert testimony of Sergeant Davis regarding the Hells Angels. Again, we do not agree.
[5] It is clear from the trial judge's reasons that he did not make improper use of the expert's opinion. In particular, he stated at p. 1637 of the Reasons in the Appeal Book:
"The defence takes issue with Detective Sergeant Davis as an expert and with his opinion. On the first point, I note that there was no direct attack against Detective Sergeant Davis' qualifications. In any event, having reviewed his curriculum vitae, I am satisfied that he is properly qualified as an expert in the activities, organization and objectives of motorcycle gangs in general and the Hells Angels in particular. On the second point, I am satisfied that Detective Sergeant Davis' opinion meets all of the requirements set out in R. v. Mohan, [1994] 2 S.C.R. 9. In particular, his opinion is relevant and it is necessary to assist me as the trier of fact in determining the issue to which his opinion is directed."
[6] Even if Sergeant Davis' opinion should not have included his conclusion on the ultimate issue of criminal organization, there is no harm in this case because the trial judge found that the totality of the evidence heard overwhelmingly demonstrated that the Hells Angels motorcycle club is a criminal organization.
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