SUPREME COURT OF CANADA DECISION MAY REQUIRE PROSECUTORS TO DISCLOSE NEGATIVE INFORMATION GOING TO CREDIBILITY OF CROWN "EXPERTS" LIKE CHARLES SMITH;

Toronto Sun columnist Alan Shanoff writes that the recent McNeil decision may require prosecutors to provide information on expert witnesses they are calling such as whether they have been the subject of professional discipline proceedings - or castigated by judges;

Shanoff's views ran on January 25, 2009 under the heading, "'Hired guns' take a hit from Supreme Court."

"Earlier this month the Supreme Court of Canada released a decision that will likely have a large impact on how key witnesses, including expert witnesses, can be cross-examined in court. It's a move that should help reduce legal injustices," Shanoff's column begins;

"This saga began in May 2004 when a Barrie judge convicted Lawrence McNeil on various drug charges," the column continues.

"After the conviction, McNeil's lawyers learned the arresting officer had been charged with four criminal offences. One of the charges involved an allegation the officer provided false information to police in connection with another unrelated investigation, while two of the charges involved alleged thefts.

The officer was also charged under the Police Services Act. There were 71 allegations of discreditable conduct, deceit and neglect of duty, including delivering and using cocaine.

The officer eventually pled guilty to one of the criminal offences and McNeil's convictions were ultimately set aside.

More important is the resulting Supreme Court of Canada decision that should benefit all who wish to attack the credibility of their accusers, both in criminal and civil cases.

Let's take two fairly common situations: You've been charged with an offence or you've been injured as a result of the negligence of another and are suing for out of pocket expenses, as well as pain and suffering damages. In each case a key witness will be testifying against you.

In the personal injury lawsuit you'll likely have a physician called by the defence -- or rather the insurance company defending the lawsuit -- testifying your injuries aren't as serious as you or your doctor say they are.

In the criminal case you'll have police officers testifying about what they observed and why you were arrested.

Suppose you want to attack the credibility of the witnesses testifying against you. What information are you entitled to obtain and use to attack the credibility of these witnesses?

Well, courtesy of the McNeil decision your rights have been broadened.

The McNeil decision makes it clear any records of serious misconduct that could "reasonably impact" a case should be disclosed and therefore may be used to cross-examine witnesses and attack their credibility. This includes all disciplinary records of witnesses that could reasonably have a bearing on the case.

In our world of wrongful convictions this is a welcome development.

There's no reason why we shouldn't be able to extend this reasoning to cover adverse findings of credibility made against key witnesses.

Suppose the officer isn't facing any charges or disciplinary action but judges in other cases have found the officer's evidence to be not worthy of belief. Couldn't that information "reasonably impact" a case? Shouldn't this information be available to defence counsel for purposes of cross-examination?

With broadened rights of cross-examination we reduce the impact of expert witnesses such as now-disgraced child pathologist Dr. Charles Smith and his ilk.

Smith, whose evidence sent innocent people to jail, was allowed to testify as an expert witness in 45 cases without being confronted with an early court finding that his evidence was not worthy of acceptance.

Key witnesses, including medical experts, who testify in criminal trials or personal injury actions may now be fiercely cross-examined based on critical findings in disciplinary proceedings and in previous lawsuits.

There are numerous physicians who testify for the defence in personal injury lawsuits after providing what are called independent medical exams. Some are well known as being consistently sympathetic to the defence, to the point where their evidence can be suspected of being biased.

These are the hired-gun expert witnesses that courts abhor.

Lawyers for injured parties should now have access to and the ability to use information from the College of Physicians and Surgeons files to cross-examine these defence experts.

The same goes for information from the Health Professions and Appeal and Review Board and in the courts. Material on disciplinary action, disciplinary charges or indeed even just adverse findings of credibility should be routinely made available for use on cross-examination of these witnesses.

The McNeil decision will help lawyers expose hired gun experts. That should get rid of some of the bad apples that have infected the legal system."

Harold Levy...hlevy15@gmail.com;