|
Evidence - Admissibility. R. v. R.G.
In R. v. R.G. (Ont CA, 2026) the Ontario Court of Appeal usefully considers the general admissibility of evidence, judicial gatekeeping - and more specifically the distinction between lay and expert opinion:a. The Governing Principles
[40] The law of evidence distinguishes between observed fact and opinion and, within opinion evidence, between lay and expert opinion.
[41] Observed facts are matters personally perceived by a witness. An opinion involves an inference or conclusion drawn from facts. Where the validity or value of that inference depends upon specialized training, knowledge or experience, the evidence is expert opinion. If the inference does not, then it is lay opinion: R. v. Collins (2001), 2001 CanLII 24124 (ON CA), 160 C.C.C. (3d) 85 (Ont. C.A.), at paras. 16-17.
[42] These distinctions bear directly upon admissibility. Relevant factual evidence is generally admissible unless excluded by a rule of law or because its prejudicial effect exceeds its probative value. Opinion evidence, by contrast, is presumptively inadmissible: Collins, at paras. 16-21; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 14.
[43] Lay opinion may nevertheless be admitted where it is based upon the witness’s own observations, does not depend upon specialized knowledge, and is an inference that the witness is better placed than the trier of fact to draw. Lay witnesses routinely communicate impressions or conclusions that represent convenient ways of describing what they perceived and cannot be readily separated from those underlying observations: Collins, at para. 17; R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 835-39.
[44] Expert opinion is different. It draws its evidentiary force from knowledge or experience outside the ordinary experience of the trier of fact. A witness who proposes to give such evidence must possess appropriate expertise and satisfy the governing requirements for admissibility: White Burgess, at paras. 15, 23-24.
[45] Those safeguards serve an important purpose. Expert evidence carries a particular risk that the trier of fact may defer to the perceived authority of a witness possessing specialized knowledge. The authority associated with professional expertise may cause an opinion to assume greater evidentiary weight than the underlying evidence justifies: White Burgess, at paras. 17-18.
[46] Trial judges, therefore, perform an essential gatekeeping function. They are responsible for maintaining the evidentiary boundaries between fact, lay opinion, and expert opinion that protect the integrity of the trial process: R. v. Sutherland, 2022 MBCA 23, [2022] 5 W.W.R. 189, at para. 39, leave to appeal refused, [2022] S.C.C.A. No. 134; R. v. Sandhu, 2025 SKCA 76, 453 C.C.C. (3d) 110, at paras. 26-27.
[47] Gatekeeping begins with ruling on admissibility, permissible scope, and use. Vetting potential issues in advance of witness testimony is mandatory for expert evidence. It is also “good practice” where a witness with professional qualifications is called to provide factual testimony or lay opinion: R. v. Umeadi, 2023 ONCA 7, at para. 36, leave to appeal refused, [2023] S.C.C.A. No. 171; see also R. v. Moreira, 2023 ONCA 807, 432 C.C.C. (3d) 255, at para. 37.
[48] That gatekeeping responsibility continues throughout the testimony. A witness called to give factual evidence or lay opinion may, during examination-in-chief or cross-examination, move into an area requiring specialized knowledge. Where the evidence raises a material admissibility concern, particularly where the trier of fact may rely upon it as possessing specialized authority, the trial judge should address the issue with the parties and determine its permissible use. Depending on the circumstances, this may include inviting submissions and determining whether the evidence is admissible as factual evidence or lay opinion or instead requires expert qualification: Sutherland, at paras. 38-39, 47; Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at paras. 61-66, leave to appeal refused, [2017] S.C.C.A. No. 343; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 11.
[49] At the same time, the boundary must be drawn carefully. The mere fact that a witness possesses professional qualifications does not mean that every inference expressed by that witness is expert opinion: Sutherland, at para. 40.
[50] A psychologist, physician, nurse, or police officer may testify to matters personally observed. Such a witness may also express an otherwise admissible lay opinion where the inference does not depend for its validity upon specialized professional knowledge: Sutherland, at para. 40; R. v. Natsis, 2018 ONCA 425, 140 O.R. (3d) 721, at para. 20.
[51] The critical inquiry is, therefore, not simply who the witness is, but what inference the witness is drawing and what gives that inference its evidentiary force: Sutherland, at para. 40.
[52] That distinction has a corollary important to this appeal. If an opinion is truly lay opinion, a witness’s professional credentials cannot properly be used to give that opinion additional authority. Conversely, where the trier of fact relies upon specialized professional knowledge or experience as a reason for accepting an opinion, the trier of fact is treating the evidence as possessing expert authority: Graat, at pp. 840-41.
[53] In a judge-alone trial, the trial judge must, therefore, guard not only against relying upon inadmissible expert opinion, but also against subsequently giving otherwise admissible evidence expert weight because of professional qualifications that have not been established for that purpose: J.A.A., at para. 11; Graat, at pp. 840-41.
[54] The gatekeeping responsibility is not eliminated because counsel failed to object when the evidence was given. Evidence requiring expert qualification does not acquire expert status through silence, oversight, or consent: R. v. K.(A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 73, n. 8, application for leave to appeal quashed, [2000] S.C.C.A. No. 16; R. v. P.J.C., 2025 ONCA 196, 176 O.R. (3d) 262, at para. 30. . R. v. Singh
In R. v. Singh (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this from "eight counts arising from allegations of assault, sexual assault, and forcible confinement".
Here the court considered basics of evidence admissability:[17] Evidence is admissible if (1) it is relevant to a live material issue, (2) its probative value exceeds its prejudicial effects, and (3) no other exclusionary rule applies: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting in part, but not on this point). . R. v. Hussein
In R. v. Hussein (SCC, 2026) the Supreme Court of Canada dismissed a further appeal (the CA also dismissed), this after the "trial judge dismissed Mr. Hussein’s Corbett application after concluding that the probative value of the criminal record outweighed its prejudicial effect".
Here the court canvasses basic principles of admissibility:A. Governing Evidentiary Principles
[27] An assessment of whether evidence is admissible involves a multi-step process (S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶2.48). First, a trial judge must determine whether the proffered evidence is relevant. Relevance is not a high threshold and is established when the evidence has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence (R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108, per Martin J., dissenting in part). There are no degrees of relevance, nor does relevance require a “minimum probative value” (R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 38). Evidence must also be material, meaning that it is relevant to a live issue at trial (Calnen, at para. 109). Generally speaking, relevant evidence is prima facie admissible (R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 18; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 20).
[28] Second, a trial judge must determine whether the evidence is subject to any exclusionary rule, which, as discussed below, includes the rule against bad character evidence. Third, when the evidence is led by the Crown, a trial judge must decide whether they should exercise their discretion to exclude the relevant evidence because its prejudicial effect outweighs its probative value. The standard for excluding relevant evidence is heightened when it is led by the defence (see R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at pp. 610-11). Probative value refers to “the degree or extent to which the evidence will prove the fact in issue for which it is tendered” (Lederman, Fuerst and Stewart, at ¶2.79). Evidence will have a prejudicial effect where “it is prone to being misused, its reliability cannot be adequately tested, or it may otherwise operate unfairly or produce problematic collateral costs” (D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 52). . McCormack v. Evans [exclusions contrasted in criminal/admin/civil/charter contexts]
In McCormack v. Evans (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here brought against the dismissal of "a civil action against the respondents alleging malicious prosecution, negligent investigation and other civil wrongs".
Here the court considers exclusion of the same evidence in contrasting criminal, charter, civil and administrative contexts:iii. The Rules of Admissibility at Civil Trials are Different
[75] The same subject matter can give rise to criminal, civil and administrative proceedings. These juridical contexts have elements in common but are also fundamentally distinct. Because they involve different legal, policy and public interest considerations, exclusion of evidence in one context does not imply exclusion in another. This is particularly so where the Charter is concerned. As Rosenberg J.A. observed in P. (D.) v. Wagg, 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.), at para. 77: “the analysis of whether or not to exclude evidence for a Charter breach is entirely different in the civil context than in the criminal context.”
[76] The coercive power of the state is most prominently on display in criminal proceedings. A person charged with a criminal offence faces jeopardy, stigma and a potential loss of liberty. It is here that the state stands as the singular antagonist of the individual and it is here that constitutional principles are most directly and forcefully engaged. The pursuit of truth is an objective of all judicial proceedings, but it is not absolute. In the criminal context, it may yield to other objectives, such as the recognition and enforcement of constitutional rights and freedoms. This is the compromise dictated by the edicts of a free and democratic society.
[77] Civil trials are different. An individual who sues police for malicious prosecution or negligent investigation does not face a risk of jeopardy or a potential loss of liberty. Within this context, the state does not wield coercive authority. Rather, the individual is the protagonist of the piece, having commenced an action for monetary compensation for alleged wrongdoing.
[78] That is the case here. It was the appellant who initiated the civil action, and it was the appellant who bore the persuasive onus of proof. The intercepted communications were introduced, not for the purpose of attaching criminal liability to the appellant, but to prevent erroneous findings of civil liability from attaching to the respondents.
[79] In this context, the Charter did not determine admissibility. Admissibility was governed by the rules of evidence, as defined by statute and common law, and as informed by Charter values: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at p. 603; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 91-97. The overarching calculus was one that balanced probative value against prejudicial effect. This equation facilitates the pursuit of truth, while allowing for exclusion of evidence that would undermine the integrity of the fact-finding process.
[80] The pursuit of truth is the cardinal principle in civil proceedings. As it was put in Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287, at para. 24:Nearly 20 years ago, Cory J. observed that “[t]he ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth”. Although the parallel objectives of proportionality and efficiency have become increasingly important in the civil procedure context, seeking the truth remains the cardinal principle in civil proceedings. Informed by this objective, the rules of the law of evidence in civil matters allow judges “to find out the truth, and to do justice according to law”. [Citations omitted.] [81] In this case, the intercepted communications were critical indicia of truth, necessary to allow the trial judge to “find out the truth and do justice according to law”. Where, as here, the plaintiff alleges malicious prosecution and negligent investigation, evidence of factual guilt or innocence is directly relevant to the inquiry. As explained in Hill (2007), at para. 64:Any suspect suing the police bears the burden of showing that police negligence in the course of an investigation caused harm compensable at law. This means that the suspect must establish through evidence that the damage incurred, be it a conviction, imprisonment, prosecution or other compensable harm, would not have been suffered but for the police’s negligent investigation. Evidence going to the factual guilt or innocence of the suspect, including the results of any criminal proceedings that may have occurred, may be relevant to this causation inquiry. [Emphasis added.] [82] In his statement of claim, the appellant expressly pleaded that he was factually innocent and that police acted without reasonable and probable grounds when they charged him with the offences. The intercepted communications stood as a powerful rebuttal of both assertions. They belied the notion of factual innocence and readily established the existence of reasonable and probable grounds. This evidence was critical to an understanding of how and why the criminal charges came to be. The intercepted communications informed the respondents’ subjective grounds to believe that the appellant had committed the offences. Those same communications established that the respondents’ beliefs were objectively reasonable.
[83] The probative value of this evidence fell at the high end of the range. Conversely, little, if any, prejudice flowed from its admission. This evidence was reliable. It captured precisely what it purported to capture: the appellant’s direct involvement in corrupt activities. Evans’ deception did not cause the appellant to say what he said. He incriminated himself through his own words and actions. Nor is there any evidence to suggest that Peluso, or Evans’ wish to “heat up the wires”, influenced the appellant’s words. The appellant’s incriminating conversations took place with persons other than Peluso. While Croll J. found that Peluso had a personal animus against the appellant, there is no indication that Peluso’s views had any material impact on the investigation.
[84] Against this backdrop, it is difficult to imagine a proper basis for excluding the intercepted communications from the appellant’s civil trial. Such exclusion would have marked a departure from factual reality, common sense, and the pursuit of justice. It would have generated a record that was intolerably distorted. It would have potentially permitted recovery of damages in the absence of civil wrongdoing. It would have been to overshoot the purpose of the Charter by permitting its use as a sword, rather than a shield. . R. v. Schneider
In R. v. Schneider (SCC, 2022) the Supreme Court of Canada summarized the basics of admissibility of evidence in a criminal trial:(1) Legal Framework for Admissibility of Evidence at a Criminal Trial
[36] Evidence that is relevant to an issue at trial is admissible, as long as it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 32; S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶2.48; M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022), at pp. 905-6). This is the three-part test for admission of all evidence. Judges must consider: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise their discretion to exclude the evidence.]
[37] When questions arise as to the admissibility of evidence, a voir dire is often needed. That said, this Court has noted in obiter that a voir dire may not be necessary for party admission evidence (R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 20). Whether a voir dire is needed for such evidence is to be determined in the circumstances of each case.
|
