Procedure for Calling Expert Evidence: Difference between revisions

Latest revision as of 10:44, 13 November 2024

This page was last substantively updated or reviewed January 2016. (Rev. # 96776)

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General Principles

No Discretion if s. 657.3 is complied with

Under 657.3, the judge may order compliance, seek particulars, or adjourn. He may not prohibit the witness from testifying who complies with the section.^[1]

Leave Required for More than 5 Experts

Under s. 7 of the Canada Evidence Act, where any party intends to examine witnesses, they are restricted by no more than 5 expert witnesses:

Expert witnesses

7 Where, in any trial or other proceeding, criminal or civil, it is intended by the prosecution or the defence, or by any party, to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than five of such witnesses may be called on either side without the leave of the court or judge or person presiding.
R.S., c. E-10, s. 7

– CEA (CanLII), (DOJ)

Note up: 7

↑ R v Horan, 2008 ONCA 589 (CanLII), 237 CCC (3d) 514, per Rosenberg JA

Notice to Call Expert Evidence

A party must give notice of intention to an expert witness at trial under s. 657.3 (1). A party intending to call the expert witness must give notice at least 30 days prior to the commencement of trial or within the time set by the judge. ^[1]

The calculation of time pursuant to the Interpretation Act and does not include the day of notice and the day of trial.^[2]

Purpose

The purpose of this section "is to avoid surprises in expert evidence." The other side must have time to prepare a cross and consider retaining their own expert in rebuttal.^[3]

The enactment of 657.3(3) modifies the common law principle that "an accused person need not provide disclosure of his or her defence."^[4] It is supposed to "promot[e] the fair, orderly and efficient presentation of the testimony of witnesses."^[5]

Sentencing Hearings

While it is unclear whether s. 657.3 notice provisions equally apply for the calling of an expert at a sentencing hearing, it does suggest that at least some reasonable notice be required.^[6]

Notice of Person and Subject Matter

Section 657.3(3) states:

657.3
[omitted (1) and (2)]

Notice for expert testimony

(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,

(a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her 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 that area of expertise, and

(iii) a statement of the qualifications of the proposed witness as an expert;

[omitted (3)(b) and (c), (4), (5), (6) and (7)]
1997, c. 18, s. 80; 2002, c. 13, s. 62.

– CCC (CanLII), (DOJ)

Note up: 657.3 (3)

Defined terms: "justice" (s. 2)

Notice must be comprised of:^[7]

"name of the proposed witness"
a "description of the area of expertise" and
a "statement of the qualifications"

Section 657.3(3)(a) applies to both Crown and defence.^[8]

↑ s. 657.3(3)(a)
R v Salter, 2005 NSCA 129 (CanLII), per Roscoe JA
↑ See Time and Place#Computation of Time
↑ R v Mousseau, 2003 ABQB 624 (CanLII), 347 AR 119, per Moen J , at para 30
↑ R v Hong, 2015 ONSC 4840 (CanLII), per Boswell J, at para 7
↑ Hong, ibid., at para 7
↑ R v Gunning, 2007 BCSC 144 (CanLII), per Parrett J
↑ see s. 657.3(3)(a)
Hong, ibid., at para 8
↑ Hong, supra, at para 8

Notice of Opinion and Report

657.3
[omitted (1) and (2)]

Notice for expert testimony

(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,
[omitted (3)(a)]

(b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as 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

(ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and

(c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).

[omitted (4), (5), (6) and (7)]
1997, c. 18, s. 80; 2002, c. 13, s. 62.

– CCC (CanLII), (DOJ)

Note up: 657.3 (3)

Defined terms: "prosecutor" (s. 2)

Section 657.3(3)(c) requiring the disclosure of the expert's report no later than the closing of the Crown's case is constitutional and does not violate s. 7 of the Charter.^[1]

Where the expert report is tendered with expert testimony at a preliminary inquiry it may be treated as a substitute for notice.^[2]

Crown Requirements to Provide Opinion and Report

In addition to the obligations that all parties must follow under section 657.3(3)(a), the Crown must also be obliged under s. 657.3(3)(b) to provide a copy of the expert report, if it exists, or a summary of the anticipated evidence, including an opinion and the grounds of that opinion. The Crown obligation need only be fulfilled within a "reasonable period" before the commencement of trial.

Defence Requirements to Provide Opinion and Report

The Defence needs to provide the Crown under s. 657.3(3)(c) with an expert report, If it exists, or summary of the anticipated evidence, including an opinion and the grounds of that opinion.

Summary

The "summary" required under s. 657.3 should set out the “chief points or the sum and substance” of the anticipated evidence.^[3] What satisfies this requirement will "depend on the context", but it must " 1) provide a reasonable basis for cross-examination; and 2) avoid surprise and delay."^[4]

↑ R v Sandham, 2009 CanLII 58981 (ON SC), per Heeney J
↑ R v Reis, 2010 BCSC 799 (CanLII), per Bernard J
↑ R v Mousseau, 2003 ABQB 624 (CanLII), 347 AR 119, per Moen J, at para 56
Hong, supra
↑ Mousseau, ibid., at para 56

Notice of Defence Expert

Section 657.3(3)(c) requires that the defence disclose a copy of the report, if any, a summary of the opinion and the grounds for the opinion of the expert no later than the close of the Crown's case.^[1]

There is some suggestion that the Crown is also entitled to the notes and work product of the defence expert to be called.^[2]

↑ Prior to enacting s. 657.3(3), at common law the defence did not need to disclose and simply could adjourn cross-examination, see R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at para 147 and comments of Binnie J., joined in by majority, at para 228
↑ See Stone, ibid.

If Notice is Not Given

Section 657.3(4) states that where the notice requirements of s. 657.3(3) are not complied with, the available remedies are:

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;" (657.3(4)(a))
an "order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b);" and (657.3(4)(b))
an "order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so." (657.3(4)(c))

657.3
[omitted (1), (2) and (3)]

If notices not given

(4) If a party calls a person as an expert witness without complying with subsection (3) [expert testimony – notice], the court shall, at the request of any other party,

(a) 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;

(b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b) [expert testimony – notice – Crown report]; and

(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so.

[omitted (5), (6) and (7)]
1997, c. 18, s. 80; 2002, c. 13, s. 62.

– CCC (CanLII), (DOJ)

Note up: 657.3 (4)

These remedies do not include the power to prohibit the party from calling the expert.^[1]

↑ R v Horan, 2008 ONCA 589 (CanLII), 237 CCC (3d) 514, per Rosenberg JA
Somerville v R, 2012 NBCA 23 (CanLII), 100 WCB (2d) 788, per Richard JA

Other Remedies for Inability to Respond to Expert

See also: Particulars

657.3
[omitted (1), (2), (3) and (4)]

Additional court orders

(5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) [expert testimony – notice] has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following:

(a) adjourn the proceedings;

(b) order that further particulars be given of the evidence of the proposed witness; and

(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.

[omitted (6) and (7)]
1997, c. 18, s. 80; 2002, c. 13, s. 62.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 657.3 (5)

Preparation of the Expert Report

See also: Crown Duty to Disclose and Litigation Privilege

Sharing Drafts with Counsel

Generally, there is no prohibition against the expert circulating draft reports to counsel.^[1]

Disclosing Communications and Related Notes

The production of emails and notes on the interactions between an expert and counsel should only be allowed where there is a "factual foundation to support a reasonable suspicion that counsel improperly influenced the expert."^[2]

Draft Reports and Litigation Privilege

There is some suggestion that at common law, litigation privilege does not apply to draft reports of an expert as they represent "preliminary findings, opinions and conclusions."^[3]

While other courts have found that drafts are captured by litigation privilege.^[4] Even more, in the province of Quebec, draft reports have been considered covered by solicitor-client privilege.^[5]

↑ Moore v Getahun, 2015 ONCA 55 (CanLII), 381 DLR (4th) 471, per Sharpe JA, at para 7 ("I conclude that the trial judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert reports.")
Flinn v McFarland, 2002 NSSC 272 (CanLII), 211 NSR (2d) 201, per MacAdam J
↑ Moore, supra, at para 78 ("Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence. In my view, the trial judge erred in law by stating that all changes in the reports of expert witnesses should be routinely documented and disclosed. She should not have ordered the production of Dr. Taylor’s drafts and notes.")
↑ Montreuil v Canadian Forces, 2007 CHRT 17 (CanLII) per Deschamps (tribunal) , at para 51 ("It appears that in common law, certain decisions suggest that the draft reports prepared by an expert called to testify in a proceeding are not covered by the litigation privilege and that a party can require their production. This stems from an obiter by Gillese J.A. of the Court of Appeal for Ontario in Horodynsky Farms Inc ...")
Conceicao Farms Inc v Zeneca Corp., 2006 CanLII 25345 (ON CA), 272 DLR (4th) 532, per Gillese JA
Aviaco International Leasing Inc v Boeing Canada Inc, 2002 CanLII 21293 (ONSC), [2002] OJ No 3799, [2002] O.T.C. 734 (SCJ), per Nordheimer J, at para 16 ("In my view, draft reports represent, at the very least, preliminary findings, opinions and conclusions of the expert and therefore fall within the scope of the [Ontario Civil Procedure] rule. ...It also seems to me, for the reasons expressed by Ferguson J. in Browne, that a party ought to be able to explore with an expert whether he or she changed her views from draft to draft and, if so, why. It is all part of testing the expert’s conclusions. It also important that this material be produced in advance of the trial so that the trial is not interrupted while such material is reviewed. ")
↑ Vancouver Community College, [1992] F.C.J., No 816(complete citation pending)
e.g. Kelly v Kelly, [1990] OJ No 603(complete citation pending)
Bell Canada v Olympia & York Developments Ltd. et al., 1989 CanLII 4170 (ONSC), 68 OR (2d) 103
Highland Fisheries Ltd v Lynk Electric Ltd, 1989 CanLII 5178 (NS SC), 63 DLR (4th) 493, per Richard J
↑ Montreuil, supra, at para 55 ("In Quebec civil law, the Court of Appeal, for its part, has held several times that notes and rough drafts, drafts and preliminary reports produced by an expert are included in solicitor-client privilege and that they cannot be produced in evidence at the request of the opposing party (Poulin v Prat, supra, Laviolette v Bouchard, [2001] J.Q. No 3642).")

Proper Use of Expert Reports

In practice, the expert report is often only provided to the judge as an "aide memoire" to assist the trier-of-fact in following the oral testimony of the expert and not as evidence.^[1]

If a judge wishes to rely on a contradiction between the report and oral testimony, the report must be tendered into evidence as exhibits and the contradiction must be confirmed by the witness with a chance to explain the difference.^[2]

↑ e.g. Moore v Getahun, 2015 ONCA 55 (CanLII), 381 DLR (4th) 471, per Sharpe JA, at paras 3 and 86
R. v. Copeland, 2018 ONSC 3648 (CanLII), <https://canlii.ca/t/hvd78>
Johnson, 2017 ONSC 2084
↑ Moore, ibid., at paras 86 to 87 ("If an expert’s report has not been entered into evidence as an exhibit, it has no evidentiary value, even if provided to the trial judge as an aide memoire. ... if the expert witness was not cross-examined as to an inconsistency between his or her viva voce evidence and the contents of their report, it is not open to a trial judge to place any weight in assessing the expert’s credibility on this perceived inconsistency. This is not a mere technicality but rather a matter of trial fairness. The expert witness is entitled to be openly confronted with what may appear to be contradictions so that he or she has the opportunity to explain or clarify the apparent inconsistencies. ...It follows that the trial judge erred to the extent that she relied on perceived contradictions between the experts’ oral evidence and their reports, as the alleged contradictions were not put to the experts in cross-examination and the reports were not exhibits.")

Other Use of the Materials

Under s. 657.3 (6), the prosecution is prohibited from using any of the materials given to him by defence for as part of its own case where the expert does not testify except for cross-examination without the consent of the accused. It further cannot be used for any other proceedings. (657.3(7))

657.3
[omitted (1), (2), (3), (4), (5) and (6)]

No further disclosure

(7) Unless otherwise ordered by a court, information disclosed under this section in relation to a proceeding may only be used for the purpose of that proceeding.
1997, c. 18, s. 80; 2002, c. 13, s. 62.

– CCC (CanLII), (DOJ)

Note up: 657.3 (7)

Admissibility Without Testimony

Section 657.3 permits a party to adduce expert evidence without the need to have the expert give viva vice evidence:

Expert testimony

657.3 (1) In any proceedings, the evidence of a person as an expert may be given by means of a report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of the person as an expert if

(a) the court recognizes that person as an expert; and

(b) the party intending to produce the report in evidence has, before the proceeding, given to the other party a copy of the affidavit or solemn declaration and the report and reasonable notice of the intention to produce it in evidence.

Attendance for examination

(2) Notwithstanding subsection (1) [expert testimony – affidavit re expertise], the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration or report.
[omitted (3), (4) and (5)]

Use of material by prosecution

(6) If the proposed witness does not testify, the prosecutor may not produce material provided to him or her under paragraph (3)(c) [expert testimony – notice – notice of defence expert] in evidence without the consent of the accused.
[omitted (7)]
1997, c. 18, s. 80; 2002, c. 13, s. 62.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 657.3 (1), (2) and (6)