on novel science or on a novel scientific theory. See Abbey #1,
at para. 116.
[ 51] Of the enumerated factors to be considered at the gatekeeper stage, the three that are applicable are legal relevance,
reliability and the absence of bias.
[ 52] Before leaving the White Burgess test for the admissibility
of expert evidence, I make three additional points, which I will
elaborate on when discussing the fresh evidence.
[ 53] First, recent case law, including White Burgess itself, has
emphasized the importance of the trial judge’s gatekeeper role.
No longer should expert evidence be routinely admitted with
only its weight to be determined by the trier of fact. As Cromwell
J. said in White Burgess, at para. 20, “[t]he unmistakable overall
trend of the jurisprudence, however, has been to tighten the
admissibility requirements and to enhance the judge’s gatekeep-
ing role”. Cromwell J.’s observation echoes the point Binnie J.
made in the earlier Supreme Court of Canada decision R. v. J.
(J.-L.),  2 S.C.R. 600,  S.C.J. No. 52, 2000 SCC 51,
at para. 28: “The admissibility of the expert evidence should be
scrutinized at the time it is proffered, and not allowed too easy
an entry on the basis that all of the frailties could go at the end
of the day to weight rather than admissibility.”
 Second, case law since Mohan has also emphasized the
importance of the reliability of the evidence to its admissibility.
See, for example, R. v. J. (J.-L.) and R. v. Trochym, 
1 S.C.R. 239,  S.C.J. No. 6, 2007 SCC 6. In Abbey #1, at
para. 87, Doherty J.A. pointed out that at the gatekeeper stage
of admissibility the reliability of the proposed expert evidence is
central to its probative value and thus to the benefits of admit-
ting it. And as I will discuss, the unreliability of Totten’s opinion
evidence on teardrop tattoos, as demonstrated by the fresh evi-
dence, is what disqualifies its admission.
[ 55] The third and final point is that in White Burgess, at
para. 45, Cromwell J. resolved a debate in the case law and held
that an expert’s lack of impartiality and independence and
an expert’s bias go to the admissibility of the expert’s evidence
as well as to its weight, if admitted. At the admissibility stage
these qualities are relevant to the threshold requirement of
a properly qualified expert, and they are again relevant at
the gatekeeper stage. Cromwell J., however, did point out,
at para. 49 of his reasons, that rarely will a proposed
expert’s evidence be ruled inadmissible for failing to meet this