One of the strangest things I have heard raised in argument against the logical approach is that use of the approach means the expert’s testimony will end up impinging upon the authority of the Court. I have heard this a few times recently. I find this particularly troubling because it has come from lawyers. Unfortunately, this has always happened in circumstances where I could not actually discuss the matter with them.
As an objection to the logical approach, this is the most unexpected thing I have ever heard, without a doubt. In reality, proper application of the logical approach is one of the few ways to ensure that this issue will not happen.
To clarify, it is important to first understand the concept of “usurping the role of the Court” which means, in essence, to improperly influence the court’s procedures and decision-making, often by speaking inappropriately to or about the ultimate issue. Or, in other words, to impinge on the Court’s authority to make decisions about the ultimate issue, or ‘what happened’. To be sure, there is a legitimate concern that this could be a problem, particularly when the court is listening to an expert. As a result, the concept has been discussed literally for years and it is not a new concern.
In fact, it can be found in various codes and directives regarding expert evidence. Indeed, Justice Sopinka noted this precise issue in the 1994 R. v. Mohan ruling when he stated, in part, “There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact.”
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