8. Special Statutory Provisions

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages215-216

Page 215

A number of sections relating to expert evidence are contained in the various provincial Evidence Acts. Two kinds of provision are of particular importance. The first imposes limits on the number of experts who can be called without leave of the court. The number who can be called as of right varies between three182and five183for those jurisdictions limiting the number of experts. The sections are obviously intended to keep trials from degenerating into contests between experts, judged according to who can produce the most.

Page 216

The second kind of provision permits reports by certain experts to be filed with the court without the need to call the expert. Some of these provisions apply to any kind of expert,184while others are confined to qualified medical practitioners.185These sections provide notice and disclosure requirements and give the opposing party the right to insist that the expert be produced for cross-examination. If a party calls an expert where a report would have sufficed, most of these sections provide expressly that an order for costs can be made against that party.

In criminal cases, certificates of analysis conducted by experts relating to blood and breath samples in alcohol driving cases,186or the analysis of narcotics,187are admissible without the need to call the expert. In each case leave of the court is needed to compel the attendance of the expert for cross-examination. Section 657.3 of the Criminal Code permits expert reports, supported by affidavit, to be admitted on any issue in lieu of calling the witness, although the court retains the discretion to require the witness to testify in chief or to be cross-examined. The provisions also impose notice and disclosure obligations relating to expert reports, including on the accused, although for reasons having to do with the principle of a case to meet188while the Crown must give disclosure within a "reasonable period before trial," the accused need not furnish the actual expert report until the close of the Crown case. It has been held that there is no authority under section 657.3 to exclude expert evidence for non-compliance. 189

[182] Alberta Evidence Act, s. 10; Manitoba Evidence Act, s. 25, New Brunswick, Evidence Act, s. 23; Northwest Territories, Evidence Act, s. 10; Ontario, Evidence Act, s. 12; Yukon Territory, Evidence Act, s. 9.

[183] Saskatchewan, The Evidence Act, s. 48.

[184] British Columbia, Evidence Act, s. 10; New Brunswick...

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