Case Report – BCCA lays out discretionary factors for Criminal Code subpoena of reluctant expert

On October 3rd the British Columbia Court of Appeal heard an appeal of application to quash a subpoena that compelled an expert to testify against his wishes in a criminal trial.  It rejected arguments for a general rule against compelling a reluctant expert to testify in a case where she has no prior connection as inappropriate given criminal defendants’ right to make a full answer and defence. Instead, it adopted the following rule:

In summary, then, in the case of compelling an expert’s attendance at trial under s. 698, having established that he or she is likely to give material evidence in the proceeding, the issuing judge or justice should further consider, at least, these matters:

(i)         the prima facie entitlement of the court to every person’s evidence, whether of fact or opinion;

(ii)        whether the expert has some connection with the case in question;

(iii)       whether the expert is willing to come “provided his image is protected by the issue of a subpoena”;

(iv)       whether attendance at court will disrupt or impede other important work that the expert has to do;

(v)        whether, and to what extent, the expert will be required to expend time and effort in preparing evidence for the court; and

(vi)       whether another expert of equal calibre is available.

This list is not exhaustive.

The Court also held (1) that defence counsel’s perceived competence and the potential for a negative impact on other matters in which the expert is engaged are not proper factors and (2) that proof of the necessity of the evidence is not required.

R. v. Blais, 2008 BCCA 389.

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