Expert Witness

Question 1

Who is an expert witness?

Answer 1

• Qualified by knowledge, skill, experience, training or education
• Able to provide a scientific, technical or other specialize opinion, which must relate to the evidence or to a fact in issue
• Does not matter whether the knowledge has been acquired by study, scientific works or by practical observations

“The only requirement for the admission of expert opinion is that the ‘expert witness possesses special knowledge and experience going beyond that of the trier of fact’ …Deficiencies in the expertise go to weight, not admissibility…” R. v. Marquard, [1993] 4 S.C.R. 223

Question 2

What is required for disclosure?

Answer 2

Crown counsel has an obligation:

• To provide Stinchcombe disclosure
• Comply with s. 657.3 of the Criminal Code

Question 3

What does the Canada Evidence Act state about expert witnesses?

Answer 3

That each side is limited to 5 expert witnesses, unless given leave by the court.

Question 4

What does the Criminal Code say about expert witnesses? What section can this information be found in?

Answer 4

s. 657.3 Criminal Code
Possible to given evidence by written report with following pre-requisites:

• recognized as an expert by the court
• notice of intention to opposing side
• affidavit or solemn declaration of the expert setting out qualifications
• expert report

Not withstanding this, may still be required to be available for cross- examination

Question 5

What are the obligations to provide information when calling an expert witness?

Answer 5

Any party proposing to call an expert witness must provide:

• 30 days’ notice of intention to call an expert (prior to trial) or such other time as may be fixed by the judge
• Name of the proposed expert
• Area of expertise
• Statement of qualifications

In addition to this, the Crown must:

• Provide a copy of the report or
• A summary of the anticipated opinion evidence

Question 6

What can happen if the obligations to provide information in relation to expert witnesses are not fulfilled?

Answer 6

• Adjournment
• Recalling of witnesses
• Disclosure order

Question 7

What information should be included in a C.V.?

Answer 7

• Educational diplomas/degrees, past and ongoing
• All courses, workshops, seminars attended
• All training, when and by whom
• Experience
• Past experience providing expert testimony, name of case, level of court, justice/judge
• Pertinent reading and writings
• Presentations and teaching
• Professional memberships, associations

Question 8

What is the test for admisibility for expert witness testimony?

Answer 8

• Relevance
• Necessity in assisting the trier of fact
• The absence of any exclusionary rule
• A properly qualified expert (reliability of the opinion)

R. v Mohan

Question 9

What is considered during a voir dire with respect to admissibility?

Answer 9

• Is the expert opinion sufficiently beneficial to the trial process vs. potential harm to the trial process?
• Requires a voir dire in order for the judge to decide the admissibility and scope of the opinion, including terminology
• This includes the ability to admit part of the proffered opinion, edit the language used, modify the nature/scope of the proposed opinion R. v. Abbey (2009), 97 O.R. (3d) 330 (Ont.C.A.)