 |
| Patrick Ducharme |
Expert evidence may be given by means of a report accompanied by the affidavit or solemn declaration of the expert, setting out in particular the qualifications of the person as an expert and with reasonable notice of the intention to produce it in evidence as long as the party intending to produce the report in evidence has also given the other party a copy of the affidavit or solemn declaration, and, the court recognizes that person as an expert. This method of producing expert evidence by means of a report is an exception to the hearsay rule. The notice is to be given thirty days before trial, or, “such other period as fixed by the Judge.”
Subsection 657.3(3) provides the specific information that must be disclosed to the opposing party. In addition to notice of an intention to call a person as an expert witness at the trial, the notice must be accompanied by:
(i) the name of the proposed witness,
(ii) a 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
(iii) 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 calling the expert witness to provide the opposing party with the material required and order the calling or re-calling of any witnesses for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.
The timing of prior disclosure of an expert witness who is going to testify is 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 at least thirty days before the commencement of the trial or within any other period fixed by the Judge, give notice to the other party or parties of his intention to do so, accompanied by:
(i) the name of the proposed witness,
(ii) a 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
(iii) a statement of the qualifications of the proposed witness as an expert;
(b) in addition a prosecutor who intends to call an expert witness shall, within a reasonable period before trial, provide to the other party or parties
(i) a copy of the report, if any, prepared by the proposed witness for the case, and shall within a reasonable period before the proceedings begin 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 who intends to call an expert witness shall not later than the close of the case for the prosecution (at trial) provide to the Crown and other party or parties the report or summary opinion.
The defence is permitted to wait to the close of the prosecutor’s case before providing the Crown or other party or parties with the expert’s report or summary opinion. This fits with the legal concept that an accused is not required to reveal her evidence until she knows the full case to meet.
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.
Subscribe to Patrick Ducharme's Youtube Channel