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Evidence - Expert - Cross-Examination. R. v. Bauman
In R. v. Bauman (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against convictions in "two counts of first degree murder".
Here the court considers the range of cross-examination of an expert witness:[126] With respect to the request for limitations on the scope of the Crown’s cross-examination of Ms. Blackmore, this issue revolved around the scope of Ms. Blackmore’s written report. It summarized Ms. Blackmore’s proposed evidence on the impact on DNA survival of the bone’s prolonged exposure to burning in a barrel, weather conditions, and the cleaning procedures CFS had used. It also referred to the ability to swab the bone for DNA before and after it was cut by CFS, whether the bone’s DNA profile must come from only two persons, the qualifiers appropriately placed on the likelihood ratios CFS had obtained, and potential sources of contamination. But it did not, at least directly, offer an opinion either confirming or disputing the opinion of the Crown’s DNA expert, Melanie Richard, on the DNA content of the bone, nor offer any comment at all on the opinion Ms. Richard had expressed regarding the DNA content of the blood found inside the bedroom.
[127] The trial judge disagreed with the defence position that any area that was outside the four corners of Ms. Blackmore’s report should be ruled out of bounds for cross-examination. He gave several reasons for this conclusion. First, he considered it to be “well-established that an expert witness on cross-examination by opposing counsel can be asked to comment on the opinion of the other party’s experts”, whether or not the expert being cross-examined had raised the issue in their own report. Second, he considered that the scope of cross-examination of any witness is not restricted to what they refer to in chief. Third, he held that litigation privilege would not extend to Ms. Blackmore’s views about the opinions of Ms. Richard, as based on her testimony at the voir dire she had not communicated any views on those topics to defence counsel, and litigation privilege protects “information and documents obtained by counsel from third parties for the dominant purpose of preparation for litigation”. Fourth, any potential litigation privilege over these topics would be waived if Ms. Blackmore testified in the trial.
[128] The appellant argues that the trial judge erred in this ruling because, “as a matter of law, calling Ms. Blackmore as a witness [would only waive] litigation privilege in respect of the contents of her report, and not in respect of other opinions she may have of the DNA analysis of the phalange and/or analysis of the blood found in the upper bedroom of the home.”
[129] We disagree.
[130] The purpose of litigation privilege is to allow “parties to litigation, represented or not … to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure”; it is designed to create a “‘zone of privacy’ in relation to pending or apprehended litigation”: Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at paras. 27, 34. Thus it extends to protect from disclosure certain communications between, on the one hand, a lawyer (or a self-represented litigant) and on the other, a third party (such as an expert): Blank, at para. 27. It further extends to “draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness” as doing so allows “counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports”: Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, at para. 69-70.
[131] The cross-examination the defence sought to proscribe would not have entered the “zone of privacy” that litigation privilege exists to protect. As the trial judge noted, there were simply no views communicated between Ms. Blackmore and defence counsel on the topics the defence sought to place off limits. Nor could the cross-examination the defence wished to prevent have involved “an open-ended inquiry into the differences between a final report and an earlier draft [that] would unduly interfere with the orderly preparation of a party’s case and … run the risk of needlessly prolonging proceedings”: Moore, at para. 71.
[132] Because we see no basis for the argument that litigation privilege ever extended to the areas that the defence sought to place off limits, it is unnecessary to consider whether litigation privilege would have been waived or otherwise displaced by one of the qualifications to its application: see Moore, at paras. 73-78; Blank, at paras. 37, 44.
[133] The final aspect of the trial judge’s ruling was to defer deciding, until after Ms. Blackmore’s examination-in-chief was completed, whether Ms. Blackmore could also be asked in cross-examination about the existence of an independent DNA examination the defence had conducted. The trial judge was of the view that the propriety of questioning in this area might be affected by what Ms. Blackmore’s evidence at trial turned out to be. He noted that, even if questioning in this area were permitted, it would be restricted to the existence of the independent test – questions about why that test was not being introduced in evidence would not be permitted.
[134] We see no reversible error in the trial judge’s decision to defer ruling on this issue pursuant to his case management powers: Haevischer, at para. 102.
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