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| Patrick Ducharme |
Expert testimony, by either the defence or the prosecution, unless otherwise ordered by the court, may only be presented on thirty days’ notice and service of a copy of the expert’s report or summary of anticipated evidence.
It is important to note that the provisions related to expert testimony apply equally at trial or at a preliminary inquiry. Section 657.3 of the Code provides that in any proceedings the evidence of an expert may be given by means of a report accompanied by an affidavit or solemn declaration of the person setting out the qualifications of the person as an expert, and, if the court recognizes that person as an expert, the report may be used as evidence, subject to the power of the court to require the person to appear in person to be cross-examined.
Subsection 657.3(3) provides that for the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses, notice must be given thirty days before the commencement of the trial or within any other period fixed by the Justice or Judge, accompanied by the name of the proposed witness, the description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about the area of expertise, and a statement of the qualifications of the proposed witness as an expert. These requirements apply to both the prosecution and the defence. If the notice requirements are not met the court shall, at the request of the other party, grant an adjournment of the proceedings to the party who requests it, to allow him or her to prepare for cross-examination of the expert witness. The court may also order the party who calls the expert witness to provide the other party with the material required and order the calling or recalling of any witnesses for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.
The requirements of prior disclosure are slightly different for the prosecution and the defence as it relates to a report prepared by the expert. The prosecution, if it intends to call an expert shall, within a reasonable period before trial provide a copy of the report, if any, prepared by the witness and if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which the opinion is based. An accused that intends to call an expert witness shall not later than the close of the case for the prosecution provide to the other party or parties the report or summary opinion.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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