In Regina v. Doonanco, 2020 SCC 2, the accused was convicted of three (3) offences by a jury of second-degree murder of her then domestic partner, indecently interfering with human remains, and arson. The issue at trial was both self-defence and a battered woman syndrome defence. The Alberta Court of Appeal upheld the convictions. There was a 2:1 majority from the panel of Justices.
However, the Supreme Court of Canada allowed the accused’s appeal and ordered a new trial. The Supreme Court of Canada held:
With respect, however, unlike Justice Bielby, we are not persuaded that the trial judge’s remedial ruling was capable of undoing the prejudice caused to Ms. Doonanco by the manner in which the Crown proceeded. In the circumstances, precluding Dr. Glancy from testifying was, in our view, the only way of preserving Ms. Doonanco’s right to a fair trial.
The net effect of Dr. Glancy’s evidence was to call into question Dr. Walker’s competence and the reliability of her expert testimony by showing that she failed to consider, much less explain, a number of factors that Dr. Glancy found to be atypical of the battered woman’s syndrome — factors which undermined Dr. Walker’s conclusion that Ms. Doonanco was suffering from this syndrome when she killed her domestic partner.
Because Dr. Glancy’s report was not disclosed to the defence before Dr. Walker completed her testimony, and because the factors that Dr. Glancy relied upon to characterize Ms. Doonanco’s case as atypical were never put to Dr. Walker by the Crown in cross-examination, the defence was not able to respond to Dr. Glancy’s critiques. This rendered Ms. Doonanco’s trial unfair, resulting in a miscarriage of justice (see Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a)(iii)).
In summary, the Crown’s failure to disclose the report of its rebuttal expert witness before the defence expert witness completed her testimony, when considered together with the Crown’s failure to cross-examine the defence expert witness on the contents of that report, interfered with the accused’s ability to know the case she had to meet and make full answer and defence.
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