However, I will say this much on the issue. I have grave concerns about accepting that in the context of a voir dire on the admissibility of expert opinion a judge has no discretionary authority to decide the manner in which the hearing will be conducted, including whether or not to allow an expert report to be filed as substantive evidence subject to further direct examination and to cross-examination. I point no further than to a case I have leaned on throughout these reasons for ruling - R v. Abbey, supra; in particular to the following statement of Doherty J.A., a statement which neither side noticed on this issue in their written submissions: A determination of the scope of the proposed expert opinion evidence and the manner in which it may be presented to the jury if admissible will be made after a voir dire. The procedures to be followed on that voir dire are for the trial judge to decide. Sometimes the expert must be examined and cross-examined to ensure that the proposed evidence is properly understood … (At para. 63) X. Summary of Findings
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