On balance, Crowns expert’s evidence raised question of defence expert's competence and reliability

Evidence – Opinion - Experts

Accused was convicted of second-degree murder of her domestic partner, indecently interfering with deceased's remains and arson. Accused admitted to shooting deceased, but claimed self-defence by battered woman syndrome (BWS). In support of BWS, defence called psychologist (defence expert) who developed BWS concept who concluded accused suffered from syndrome and exhibited “learned helplessness”. While Crown received report from its own psychiatric expert (Crown's expert) early in trial, it did not disclose report to defence until after defence expert had testified. Over objection based on late disclosure of expert report and “Browne v. Dunn” concerns, trial judge permitted Crown to call rebuttal evidence from psychiatrist who testified to features inconsistent with BWS. Crown's expert was prohibited from criticizing defence expert's findings, based on late disclosure of Crown expert's report and Crown's failure to cross-examine defence expert on certain alleged deficiencies. Accused’s appeal to appellate court was dismissed. Accused appealed. Appeal allowed. In circumstances, precluding Crown’s expert from testifying was, only way of preserving accused’s right to fair trial. Net effect of Crowns expert’s evidence was to call into question defence expert's competence and reliability of her expert testimony by showing that she failed to consider, much less explain, number of factors that Crown’s expert found to be atypical of BWS - factors which undermined defence expert’s conclusion that accused suffered from this syndrome when she killed her domestic partner. As Crown’s expert report was not disclosed to defence before defence expert completed her testimony, and because factors that Crown’s expert relied upon to characterize accused’s case as atypical were never put to defence witness by Crown in cross-examination, defence was not able to respond to Crown’s expert critiques, rendering accused’s trial unfair and resulting in miscarriage of justice. Convictions set aside and new trial ordered.

R. v. Doonanco (2020), 2020 CarswellAlta 308, 2020 CarswellAlta 309, 2020 SCC 2, 2020 CSC 2, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Côté J., Brown J., Rowe J., Martin J., and Kasirer J. (S.C.C.); reversed (2019), 2019 CarswellAlta 619, 2019 ABCA 118, Jack Watson J.A., Myra Bielby J.A., and Thomas W. Wakeling J.A. (Alta. C.A.).

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