SECTION OF THE CRIMINAL CODE: EXPERT REPORTS

SECTION 657.3 OF THE CRIMINAL CODE: EXPERT REPORTS ) These materials were prepared by Aaron Fox,QC, of McDougall Gauley law firm Regina, Saskatchewa...
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SECTION 657.3 OF THE CRIMINAL CODE: EXPERT REPORTS

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These materials were prepared by Aaron Fox,QC, of McDougall Gauley law firm Regina, Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar, Criminal Law Essentials; May 2002;

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SECTION 657.3 OF THE CRIMINAL CODE: EXPERT REPORTS Section 657.3 of the Criminal Code now provides that the evidence of an expert may be given by means of a report accompanied by an affidavit or solemn declaration setting out the qualifications of the expert. Prior to the implementation of Section 657.3 the only wayan expert medical report, for example, could be tendered in a criminal proceeding was to try and convince the court that section 40 of the Canada Evidence Act, R.S.c. (1985), Ch. C-5, which directed that in all proceedings, over which parliament has legislative authority, the laws of evidence in force in the Province apply to those proceedings. Based on this section you could then argue that section 32 of The Saskatchewan Evidence Act, R.S.S. (1978) Ch. S-16 applied which allowed the introduction of medical reports. This argument was rarely successful and as a result your only hope was to secure the consent of the Crown to putting in the report. Even with the consent of the Crown, many judges were reluctant to admit this type of evidence. Section 657.3 now applies to all expert reports.

Section 657.3 states: (1)

(2)

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.

Notwithstanding subsection (1), 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

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the proof of any of the statements contained in the affidavit or solemn declaration or report. The requirements of this section are fairly straightforward: 1.

You obtain a report from your expert;

2.

You obtain a copy of your expert's curriculum vitae; and

3.

You have your expert complete an Affidavit or solemn declaration confirming that his or her report is attached and that his or her qualifications are as set forth in the curriculum vitae.

The Crown, pursuant to its disclosure obligations always had to disclose the presence of an expert's report and this provision simply lets the Crown decide whether or not they want to try and put in the evidence through a report only or actually call the witness. The decision of whether or not to call an expert witness on the part of the Crown or to request that the expert witness be produced for cross examination on the part of the defence will depend on the significance of the expert's testimony. From a defence perspective, if I've decided that the evidence of the expert is not realistically challengeable and may prove somewhat prejudicial if it was presented viva voce (for example, a pathologist's report in a murder case), my preference would be to simply have the report put in rather than have all of the graphic details presented by the expert.

From a defence perspective, because Section 657.3 now places a formal disclosure requirement upon defence counsel if they wish to use an expert report rather than actually call the expert, different considerations apply.

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Set out below are some of the more common instances where an expert might be called by the defence and the factors that I consider in deciding whether to call the expert or to simply use a report:

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Drive While Over .08 There are two common instances when an expert is called in a drive while over .08 case: i)

When the accused argues that his total consumption of alcohol was such t~at he would not have been over the legal limit at the time of driving (ie. the "two beer" defence); and

ii)

When the accused accepts that the intoxilyzer readings are correct but based on the amount of alcohol he consumed during the hour or so prior to driving he argues that he would not have been over the legal limit at the time of the offence (ie. the "recent consumption" defence).

In the first instance I often use an expert's report rather than actually calling an expert. Usually the Crown is not in a position to challenge an accused's testimony as to what he consumed other than through cross examination. Disclosing in the expert's report what the accused consumed will not give the Crown a particular advantage. The exception to this would be where the accused has given a statement to the police as to how much he consumed. While the Court recognizes that many people will automatically say they had "two beer" at the time that they were stopped, the evidence to the contrary argument based on total consumption will have much greater weight if there is no evidence to contradict what the accused states he consumed or better yet, if what the accused testifies he consumed is consistent with what he told the police on

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the night in question. (Often there is not a formal statement obtained from the accused as to what he consumed. You will find this information either in the police officers' notes or in the breathalyzer technician's check sheet. The form of the check sheet and the questions that are asked will vary from police service to police service).

In the case of a "recent consumption" defence, before going the expert report route and disclosing the defence I want to be fairly certain that this is not something that the Crown can patch up. You will occasionally run into situations where when this defence has been disclosed an officer involved will testify in chief that although it is not in her notes, she recalls the accused stating that his last drink was two hours ago. This creates a credibility problem when the accused then takes the stand and testifies that he had two tequila shooters immediately before leaving the bar. ┬ĚThe decision to proceed by way of a report or to not disclose the defence and simply call the expert at trial will depend on how comfortable you are from the disclosure that the Crown is not in a position to contradict your client's testimony.

Some other issues to be cognizant of when using an expert report in a drive while over .08 case are:

1)

If the report is based on total consumption then you generally are asking what the expected blood alcohol level would be at the time of driving. If you ask what the expected blood alcohol level would be at the time of the testing, and it contradicts the test results, then you are putting the reliability of the intoxilyzer or the operation of it into question. The case law is clear that if the evidence of

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consumption shows that the accused may have been under the legal limit at the time of driving you do not have to prove or even speculate where the error was in the test results: R. v. Carter, (1983), 19 c.c.c. (3d) 174 (Ont. c.A.) at p. 179; R. v. Dubois, (1990),62 c.c.c. (3d) 90 (Que. C.A.) at p. 94 referred to with approval in R. v. Gibson [1992] 72 C.c.c. (3d) 28 (Sask. c.A.) at pp. 43 - 44. You must make this decision when you send your letter to the expert requesting a report. 2)

If the expert report is going to contradict the breathalyzer test results then you

may want to consider asking the expert to comment on how many drinks would be required in order to achieve the results exhibited by the breathalyzer instrument. If the difference is significant this can be helpful. I believe it is not very difficult for a trier of fact to find that an accused might be mistaken as to whether he had four or five beer, thus explaining the difference between his calculated blood alcohol level and the breathalyzer results. It is much more difficult to find that he is mistaken as to whether he had five or ten beer. The choices now become either that his evidence is believable or that he is not credible, versus simply being unreliable. Courts generally are more reluctant to find an accused not credible than they are to find him or her not reliable. 3)

Make sure your report covers the contingencies that might arise at trial. If, for example, your client has told you he drank four Canadian beer, 5% alcohol content, but you think that there is some prospect that the Crown might be able to get him to acknowledge in cross examination that he could have had as many six beer, then make sure this is covered off in the report. Similarly, if your client

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believes that he began consuming alcohol at 8:30 p.m. but you think he might be soft on that point and the Crown may get him to concede that it was as late at 9:00 p.m. then cover that off in the report. An example of the letter I would send to an expert in this regard is attached. 4)

If I am faced with a situation where I think tI:1e evidence may be somewhat at

variance at the trial from what is set out in the report and I have nonetheless used an expert report rather than called the expert itself, I will try and ensure that I have the expert on standby by telephone. I will advise the Crown of this, and hopefully secure an agreement that if the factual evidence is at variance with what the expert has commented upon, if between us we cannot agree on what the effect of it is, we will immediately contact the expert by phone and confirm the new numbers and then provide them to the Court. Most Crown Prosecutors will agree to this because inmost cases the expert's evidence is not an issue; the only real issue is the credibility/reliability of the accused and the rest of the defence evidence as to consumption.

2.

Refusal Using an expert medical report, rather than having to call an expert, can be simpler and

just as effective as calling the doctor in a refusal case where the accused has made some effort to blow into the breathalyzer instrument but maintains that she was not physically able to do so. Many Judges when assessing this type of reasonable excuse generally look for a subjective element (ie. was the accused sincerely trying to provide a sample of her breath) and an objective

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element, (ie. is there some objective basis to support the accused's position that she could not blow into the instrument). See: R. v. Phinney (1979), 49

c.c.c. (2d) 81 (N.S.S.C. - A.D.) and R. v. Harris (1984),30 Sask.

R. 98 (Q.B.).

In a case where an accused is a heavy smoker or is an asthmatic or has other lung or breathing difficulties, her doctor will likely not be able to provide you with a report saying that she definitely could not blow or generate sufficient breath to activate a breathalyzer instrument simply because the doctor will have no experience with a breathalyzer instrument. The doctor's report however can confirm the objective presence of some sort of medical problem and this combined with the evidence of the accused can constitute a reasonable excuse. Also, obtaining a report from the doctor is much easier than trying to convince the doctor to corne to Court and testify.

3.

Forensic Experts From a defence perspective it would be hard to imagine a situation where I would tender

a report rather than call the actual expert to testify. A good forensic expert can often prove to be an excellent closing witness. The evidence relied upon by the expert should all be in by the time he testifies. You are then given an opportunity to summarize that evidence before the trier of fact as you present it to the expert for his or her comment. The expert opinion, which is now the last piece of evidence heard by the trier of fact, is often the very point you are trying to make in argument (ie. the fire was accidental, the blows were not of such significant force that one would

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expect death to follow, or that the marks in the roadway suggest the accused's vehicle was travelling at or near the speed limit at the time of the accident).

One final comment, although Section 657.3 does provide a way of avoiding the expense of calling an expert, neither Crown nor defence counsel should view this as an opportunity to do less work than what would be normally required when you are going to call an expert witness. Whenever you are presented with expert testimony by the other side or you are contemplating calling an expert yourself, it is imperative that you educate yourself on that particular subject maUer. There is nothing more embarrassing and devastating for your case than to have your own expert acknowledge the other side's case in cross examination on a point which you should have been aware of but were not because you never took the time to review the subject area or discuss the testimony of your expert in detail with him or her beforehand.

Mr. Aaron A. Fox, a.c. Direct Line: (306) 565-5147 email: [email protected]

Brown & Co. Forensic Alcohol Specialists c/o The Holdfast Hotel Holdfast, Saskatchewan SOG 2HO Dear Ms. Brown: RE:

Jeremy Duck

I am counsel for Mr. Jeremy Duck of Regina, Saskatchewan. He has been charged with driving while his blood alcohol level exceed 80 milligrams of alcohol in 100 millilitres of blood. Set out below is a hypothetical factual situation. I would ask that you please provide me with your report addressing the questions set out herein. For the purpose of providing your report you may assume the following: 1.

Mr. Duck is 35 years of age.

2.

At the material time Mr. Duck was 6' 1" tall and weighed 205 Ibs.

3.

On the day in question being September 21 , 2002 Mr. Duck had worked throughout the day on his farm. He had breakfast at approximately 7:00 a.m., lunch consisting of soup and sandwiches at 12:00 noon and a large meal consisting primarily of roast beef and potatoes at 7:00 p.m.

4.

Between 8:30 p.m. on September 21, 2002 and 1:00 a.m. on September 22, 2002, Mr. Duck consumed four bottles of Molsons Canadian beer, 5% alcohol content. He consumed the beer at a steady rate commencing at 8:30 p.m. and finishing the last of the beer at 1:00 a.m.

5.

Mr. Duck had not consumed any alcohol in the 24 hours prior to 8:30 p.m. on September 21 st. I would ask that you please provide me with your opinion on the following:

1.

Based on the above hypothetical situation could you please advise what Mr. Duck's estimated blood alcohol level would be at 1:30 a.m. on September 22, 2002.

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2.

If Mr. Duck had consumed six Canadian beer, 5% alcohol content rather than five, during the time period described above, what would his estimated blood alcohol level be at 1:30 a.m.?

3.

If Mr. Duck began his consumption of alcohol at 8:00 p.m. rather than 8:30 p.m. what would the net effect be on his estimated blood alcohol level at 1:30 a.m.?

4.

If Mr. Duck began his consumption of alcohol at 9:00 p.m. what would the net effect be on his estimated blood alcohol level at 1:30 a.m.?

*5.

Assuming Mr. Duck consumed only Canadian beer, 5% alcohol content and all of his consumption took place between 8:30 p.m. and 1:00 a.m. as set out above, how many beer would he have to consume in order to have an estimated blood alcohol level of 200 milligrams of alcohol in 100 millilitres of blood at 2:00 a.m.?

I look forward to receipt of your report at your earliest convenience. If there is any other information you require in order to comment on the above noted hypothetical please advise me accordingly. Yours sincerely,

AARON A. FOX,

a.c.

AAF/le

* You will have to decide whether you want this as part of your report or not.

"N OTIGE~O~lNTEN,.I()NTO . CAll EXPERT EVIDENCE

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Expert Evidence

Notice of Intention to Call Expert Evidence

While there is clearly an obligation on the prosecution to provide full disclosure of any expert evidence it intends to lead, there is no such obligation upon the defence.

However, if defence counsel intends to call expert evidence, it would be prudent to carefully consider when to advise the Crown of the possibility of calling a defence expert and, further, if defence counsel should disclose the potential expert's qualifications and a description of the proposed evidence. Without notice, the trial judge could quite conceivably adjourn a trial to allow the Crown an opportunity to prepare for cross-examination.

An adjournment could frustrate whatever

advantage defence counsel hopes to obtain through non-disclosure and, in all likelihood, markedly increase the cost to the client of having the expert return on a subsequent date.

Another consideration is whether the admissibility of the proposed expert evidence might be contested by the Crown. If defence counsel is intending on calling some sort of novel expert evidence or feels there may be questions about the qualifications of the expert, then defence counsel should carefully assess when these sorts of issues are best canvassed with the Crown. While defence counsel like to boast that criminal courts are that last bastion of truly adversarial dispute resolution, including trial by ambush, in reality springing a difficult and contentious issue on the Crown in the midst of a trial is unlikely to give rise to much enthusiasm from either the Crown or the Court.

Counsel should be aware of R. v. Stone [1999] 2 S.c.R. 290. In that case, a reference to anticipated psychiatric evidence in defence counsel's opening statement given at the start of the trial, resulted in the loss of privilege over the psychiatric report and the psychiatrist's file. Once privilege is lost, counsel should expect the Crown to seek full disclosure of the expert's file, including letters of instruction and notes of conversations with defence counsel and/or the accused.

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On the flip side, correspondence or notes of communications between Crown counsel and Crown experts should be routinely disclosed. Further, even if the expert also happens to be participating in the investigation, non-disclosure of such documents cannot be justified as confidential internal police materials not subject to Stinchcombe.

Qualifying an Expert Witness

In R. v. Mohan [1994] 2 S.c.R. 9, the Supreme Court identifies four criteria for the admission of

expert evidence, being: relevance, necessity, absence of an exclusionary rule and a qualified expert.

Implicit in the process of qualifying an expert is that all four criteria are met. While discussion of those criteria is beyond the scope of this presentation, counsel needs to recognize that in order to effectively qualify your proposed expert, you first need to understand what the proposed evidence is and why that evidence should be admissible. Once you are possessed of that understanding, the process of qualifying your expert should be a fairly straightforward matter.

At the outset of the qualification process, it makes sense to advise the Court of the area or areas in which it is proposed that the expert be qualified to provide opinion evidence. This gives the Court a context for the evidence relating to qualification that is about to be presented.

You must also ensure that you seek to have the qualifications identified with sufficient scope so as to allow your expert to provide the opinions you seek. It is not a good idea to expect to have your expert qualified to give their "professional" opinion. Seeking to have a psychiatrist qualified to give expert opinions on "psychiatry" likely shows nothing more than the lawyer's lack of understanding of expert evidence. In a .08/impaired trial, if you intend to have an expert provide opinion evidence about impairment issues in addition to providing evidence about absorption and elimination rates of alcohol, then your expert must first have been qualified to give opinion evidence in these quite different areas.

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Opposing counsel might concede that the witness is qualified to provide opinion evidence in the proposed area. At that point, you must decide whether proceeding with an examination of your witness's credentials is bolstering the weight of the opinion or wasting the Court's time.

Assuming you are proceeding with the qualification process, your examination-in-chief will flow from the areas in which you are seeking qualification. The standard for qualification of an expert is quite low. The expert merely needs to be possessed of special knowledge and experience going nd

beyond that of the trier of fact. (V. Paciocco and L. Stuesser, The Law ofEvidence, 2 ed. Toronto: Irwin Law, 1999)

The qualification examination-in-chief needs to inform the Court about the special knowledge and experience your expert has. Keep in mind you must connect that knowledge to the areas of proposed opinion evidence. It is worthwhile to review with the witness whatever prior court experience the witness has, especially with respect to the proposed opinions in the instant circumstance. Typically, the witness should be led through their curriculum vitae. The witness should describe their education and work experience with an emphasis on describing the special knowledge the witness has in the area in which you are seeking to have the expert qualified.

Keep in. mind that a central aim of this part of the expert's testimony is to show your expert has important evidence to offer. Part of that process might be to lead evidence providing an explanatory foundation for opinion evidence you are seeking to enter. For example, if you are seeking to have a pharmacologist provide opinion evidence on the effect of alcohol on brain function, and to respond to a series of hypothetical questions, it might be appropriate when qualifying the expert to have the expert explain what pharmacology is, explain what brain function is and why this witness' knowledge is relevant to a trial about impaired driving. Effectively qualifying your expert can greatly enhance the opinion evidence.

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