Practical Expert Evidence Issues

Question 1

What was determined in R. v. Caslake about warrantless searches?

Answer 1

Warrantless searches are prima facie unreasonable. The burden shifts to the party seeking to uphold the search. There must be law authorizing the search.

Question 2

What is an exception to the rule laid out in Caslake?

Answer 2

Search incident to arrest.

Question 3

What section of the Charter is often focused on in litigations revolving round seizure issues?

Answer 3

Section 8 - right to be secure from unreasonable search and seizure.

Question 4

What are the primary purposes of search incident to arrest?

Answer 4

1. Ensuring safety of police and public
2. Protecting evidence/preventing destruction
3. Discovering new evidence

Question 5

Give some examples of instances where a warrant would be obtained.

Answer 5

Search of a crime scene
Search of a residence for evidence
Search of cell phone/computer/etc.
DNA warrant

Question 6

What needs to be done in order for a warrant to be valid?

Answer 6

Information to Obtain a search warrant must be sworn by an officer who has reasonable and probable grounds to believe the individual has committed an offence and that the items to be searched for would be found in whatever is being searched.

Question 7

What does the appendix of the ITO have?

Answer 7

Sets out specific items that police are permitted to search for.

Question 8

Who is responsible if physical evidence is lost?

Answer 8

The Crown

Question 9

What was Prosa’s BAC?

Answer 9

148-173

Question 10

What was found at Prosa’s trial?

Answer 10

Guilty

Question 11

Why did Mr. Prosa appeal his conviction?

Answer 11

CFS loss blood sample taken at hospital, said it violated his s. 7 Charter rights

Question 12

What did the judge decide during Prosa’s appeal?

Answer 12

Rights were violated.
Application for a stay was dismissed

Question 13

Should the Crown disclose draft reports written by the expert they intend to call?

Answer 13

Best practice: Yes

Question 14

Explain the significance of R. v. Natsis.

Answer 14

Crown should have disclosed the expert’s final version of his collision reconstruction report submitted for peer review.
No substantive changes were made by the peer reviewer.
Finding: Natsis suffered no harm from the failure to disclose the draft report that was submitted for peer review.
No remedy ordered because, although the Crown failed to disclose the draft report, the Crown’s failure to disclose did not impair Natsis’ right to make full answer and defence.

Question 15

Should defence counsel disclose draft reports from the expert they have hired?

Answer 15

Not obligated

Question 16

Why is defence not obligated to disclose draft expert reports?

Answer 16

Subject to work product privilege

Question 17

Can counsel ask an expert witness a hypothetical question that exactly mirrors the case?

Answer 17

No.

Question 18

Why can’t a hypothetical question to an expert exactly mirror the case?

Answer 18

The q would essentially ask the expert to answer the very question the jury is required to answer.

Question 19

Can the court instruct an expert witness on what is appropriate language to use in expressing their opinion?

Answer 19

Yes.

Question 20

Why is the court able to limit the language of an expert?

Answer 20

Trial judge determines the scope of the expert’s evidence
Misleading expressions can be potentially harmful.

Question 21

What should a trial judge do when they have questions regarding the validity of an expert opinion and those questions have not been put to the witness by counsel?

Answer 21

Notify counsel of their concern and provide counsel with the material that grounded the concerns.