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Ontario appeal court rules on discussions between defence lawyers and expert witnesses

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The Court of Appeal for Ontario suggested this week that lawyers representing clients in lawsuits can discuss and review draft reports with expert witnesses and do not need to disclose all written communications.

In a major ruling, the Ontario Court of Appeal has overturned a murder conviction and ordered a new trial, finding that the trial judge erred in not allowing the defence to discuss its expert reports with the expert witnesses. The case involved the 2015 shooting death of Johnathan Z Hunting, which the defence said was accidental.

The jury at the first trial convicted the accused, Denny Ross, of second-degree murder. On appeal, Ross’ lawyer, Paul Burstein, argued that the trial judge had erred in not allowing him to discuss the expert reports with the witnesses before they testified. The Appeal Court agreed, saying the defence should have been allowed to “challenge and test” the witnesses’ opinions.

The ruling is a victory for defence lawyers, who have long argued that they should be able to discuss their experts’ reports with the witnesses before they testify. The Ontario Crown Attorneys’ Association had argued that such discussions would lead to “mini-trials” outside the courtroom.

“While some judges have expressed concern that the impartiality of expert evidence may be tainted by discussions with counsel …. banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority, ” wrote Mr. Justice Robert Sharpe of the Court of Appeal for Ontario in a decision released Thursday.

The Ontario appeal court has ruled that discussions between defence lawyers and expert witnesses are protected by solicitor-client privilege. This means that these discussions cannot be used as evidence in court. This ruling is important because it protects the rights of defence lawyers to confidential communication with their clients.

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