Expert Notice and Qualification in Canadian Trials

Navigating the complexities of a criminal trial in Canada involves understanding the pivotal role of expert witnesses. A crucial aspect of this process is the "Notice to Call Expert Evidence," guided by s. 657.3 (1) of the Criminal Code, which mandates parties to give notice of their intention to call an expert witness at least 30 days before the trial or within a time set by the judge. 

Expert Testimony in the Criminal Code

Section 657.3 (1) of the Criminal Code: “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.”

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The Expert Witness: A Critical Courtroom Player

An expert witness, unlike a lay witness, offers specialized knowledge that surpasses the understanding of typical lay witnesses. Their role is to assist in understanding complex subjects integral to the case. However, their admission in court isn't automatic and involves a rigorous vetting process or “qualification” process. 

Qualifying an Expert: The Two-Stage Journey

  • Mohan Test: Named after the landmark case R v Mohan, this test sets the threshold for admissibility. It checks for relevance, necessity, absence of other exclusionary rules, and proper qualifications.
  • Judge's Discretion: Here, the judge acts as a gatekeeper, weighing the potential risks and benefits of admitting the evidence.

The White/Abbey Approach

This approach refines the Mohan test, emphasizing two stages:

  • Threshold Requirements: Checks for logical and legal relevance, necessity, and the expert's qualifications.
  • Gatekeeper Inquiry: Here, the judge weighs factors like relevance, reliability, and impartiality against potential risks.

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Notice for Expert Testimony

As detailed in s. 657.3(3) of the Criminal Code, to ensure a fair and efficient trial, parties intending to call an expert must provide notice at least 30 days before the trial or within a period fixed by the judge. This notice must include:

  • The expert’s name.
  • A description of their area of expertise.
  • A statement of their qualifications.
  • For the prosecution, additional requirements include providing a copy of the expert's report or, if no report is prepared, a summary of the anticipated opinion and its basis.
  • For the defence, similar material must be provided no later than the close of the case for the prosecution.

If Notice is Not Given

Under s. 657.3 (4) of the Criminal Code, if a party does not comply, these actions may be initiated upon request from any other party:

  • Adjournment: Court may delay proceedings to allow preparation for cross-examination of the expert.
  • Material Disclosure: Court can require the party who called the expert to share relevant materials with all other parties.

Witness Recall: Court may call or recall witnesses for testimony on issues related to the expert's, unless deemed inappropriate.

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