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Evidence - Lay Opinion
MORE CASES
Part 2
. R. v. S.T.
In R. v. S.T. (Ont CA, 2023) the Court of Appeal illustrates how assessing 'drunkenness' does not require an expert witness:[1] The appellant was convicted of sexually assaulting the complainant. They did not know each other before the incident. The complainant’s intoxication caused her to confuse him with someone else. Both claimed to have no memory of the evening as a result of excessive alcohol consumption. The trial judge found that the appellant was “relatively sober” and that he lied about his level of intoxication. The trial judge accepted that the complainant was so intoxicated that she lacked the capacity to consent to sexual activity with the appellant and found that the appellant knew that she was incapable of consenting because of her intoxication. He sentenced the appellant to 28 months in custody.
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[4] The trial judge’s determination that the appellant was not as intoxicated as he testified was grounded in the record. The observations set out in his reasons were within the purview of the trial judge and did not require expert evidence: Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 838. Importantly, the appellant’s trial counsel did not submit that expert evidence was required and conceded that the trial judge could observe the bar’s video for the purpose of assessing how the appellant “was ambulating and conducting himself”. The trial judge’s assessment of the appellant’s level of sobriety is clearly reflected in the bar’s video. This determination was open to him to make. . R. v. Nguyen
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal considered opinion evidence (which was here disallowed), both expert and lay:[48] Mr. Nguyen argues that the trial judge erred by permitting P.C. Gajraj to provide expert testimony without being qualified to do so. As I will explain, I am not persuaded that the opinion he offered constituted expert evidence, but whether it was expert opinion evidence or not, opinion evidence is prima facie inadmissible. “A basic tenet of our law is that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience”: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49. In my view, whether it was an expert opinion or not, the opinion expressed by P.C. Gajraj did not satisfy the admissibility requirements of either expert opinion evidence, or lay opinion evidence. This evidence should not have been admitted.
[49] The opinion P.C. Gajraj provided did not satisfy the rule for expert opinion evidence if for no other reason than that the Crown did not discharge its obligation of establishing P.C. Gajraj’s expertise to offer the opinion he provided: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19.
[50] Moreover, the opinion he offered arguably did not meet the necessity requirement of the admissibility test for expert evidence. As Major J. has explained, “expert evidence must be necessary in order to allow the fact finder: (1) to appreciate the facts due to their technical nature, or; (2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge”: D.D., at para. 47 quoting J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 620. It is helpful for me to repeat the impugned opinion evidence to develop the point I am making. In response to the Crown’s request for his opinion P.C. Gajraj said:Yeah I, I formed the opinion that it was consistent with one male picking up or dropping off property to each other. And in this, based on this investigation of what we, we – the information received, it was consistent with drug-related activity. [51] The observation that P.C. Gajraj made that the interaction he observed “was consistent with one male picking up or dropping off property to each other” was not technical, nor is it a conclusion on a matter that ordinary persons – non‑experts – are unlikely to form a correct judgment about. It is obvious that exchanges of property occur in drug transactions. It therefore takes no expertise to infer that an exchange that a drug trafficking suspect participates in is “consistent with drug‑related activity”.
[52] To be sure, it is not uncommon for expertise to be required to provide opinions related to drug trafficking. In R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, for example, an expert witness provided testimony about “chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins” (at para. 18), much of which would have required specialized knowledge beyond what may ordinarily be acquired by police officers without specific training. But I am far from persuaded in this case that the trial judge, without the testimony provided by C.P. Gajraj, could not have recognized that the transaction C.P. Gajraj described was consistent with drug trafficking. This opinion therefore could not satisfy the necessity requirement of the expert opinion rule. Quite simply, the trial judge could have formed the same conclusion from the facts C.P. Gajraj described without his opinion being shared.
[53] For the same reason I have just expressed, at least some of the opinion offered by C.P. Gajraj does not satisfy the test for the admission of lay opinion evidence. Lay opinion evidence is admissible where, in offering their opinions, witnesses “are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 841. I accept that C.P. Gajraj may not have been able to fully and accurately communicate the nature of the interactions he observed without describing what the interaction looked like – “one male picking up or dropping off property to each other” – but he did not have to offer the opinion that the interaction he saw was consistent with drug trafficking to describe effectively the factual observation he had made. This case is not like R. v. Douglas, 2017 ONCA 609, at paras. 7,12, where an officer was permitted based on ordinary experience he had acquired as a police officer to offer a lay opinion that a particular substance appeared to be crack cocaine. That officer could not have effectively communicated the likely nature of the substance simply by describing its colour and consistency. In my view, C.P. Gajraj therefore should not have offered that part of his opinion.
[54] The absence of objection by defence counsel has little effect on this ground of appeal. Given how prejudicial opinion evidence can be, trial judges are assigned a gatekeeping role: White Burgess, at para. 16. Where a witness is asked to provide an opinion without the questioning party first demonstrating the application of an exception, it is prudent for trial judges to raise the issue to ensure that inadmissible evidence is not received.
[55] Even though technically inadmissible evidence was received, the error was “so harmless or minor that it could not have had any impact on the verdict”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34. I would therefore apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code and dismiss this ground of appeal on the basis that the error has not resulted in a substantial wrong or a miscarriage of justice. . R. v. Kwok
In R. v. Kwok (Ont CA, 2023) the Court of Appeal considered an evidentiary issue of 'lay opinion':[37] There are three possible categories into which the rock climbing equipment statements of D.C. Lunn could be placed: an observed fact, admissible lay opinion evidence, or an opinion on a subject that required special knowledge and that needed to be given by an expert in the field. In R. v. Collins, 2001 CanLII 24124 (ON CA), 150 O.A.C. 220 (C.A.), at para. 17, Charron J.A. (as she then was) explained the differences between the three categories:In the law of evidence, an opinion means an “inference from observed fact” … [A]s a general rule, witnesses testify only as to observed facts and it is then up to the trier of fact to draw inferences from those facts. A lay witness will be permitted to give an opinion only with respect to matters that do not require special knowledge and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts. A witness testifying that ‘a person was drunk’ is a common example of an opinion that can be provided by a lay witness … Otherwise, opinion evidence will only be received with respect to matters calling for special knowledge beyond that of the trier of fact. In those cases, an expert in the field may be permitted to provide the judge and jury with an opinion…. [Emphasis in original; citations omitted.] [38] The parties agree that it is often difficult to distinguish between an observed fact and an opinion: see Graat v. R., 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 835. I would add that in some cases it will be difficult to draw a precise line between opinions that can be given by lay persons and those that require an expert. However, an opinion that is based on information gained by ordinary as opposed to specialized training or experience is not an expert opinion, even if that experience may not be common. So long as the witness has the non-expert experience required to form the opinion, it will be admissible: R. v. Millard, 2023 ONCA 426, at para. 108. . R. v. Freedland
In R. v. Freedland (Ont CA, 2023) the Court of Appeal considered an issue of non-expert opinion evidence, here where the court wanted some satisfaction regarding the witness' experience on the subject matter - but not to the point of expert qualification:Was the non-expert opinion evidence inadmissible?
[23] The store clerk, who sold the shotgun to Mr. James and the appellant, testified that, based on his observations and conversations with the appellant before making the sale, the appellant seemed, to the store clerk, to be inexperienced with firearms. In cross-examination, the appellant sought to elicit a further opinion from the store clerk about whether the purchase of a shotgun in certain circumstances would “make sense”. The trial judge interrupted and indicated that the store clerk could not give opinion evidence about whether individuals were, or were not, experienced with firearms. He repeated this instruction in his jury charge.
[24] The appellant submits that the store clerk’s opinion that the appellant appeared to be inexperienced with firearms, based on the store clerk’s observations and conversations with the appellant, was admissible as non-expert opinion evidence. The appellant argues that the opinion offered by the store clerk was a convenient and accurate way for him to describe the cumulative effect of the various observations he made while assisting the appellant and Mr. James. The store clerk’s personal experiences as a firearms salesman allowed him to accurately incapsulate those observations by way of an opinion about the appellant’s apparent level of experience with guns: see e.g. R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 835-36; David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2022), at para. 30.01.
[25] The respondent does not take issue with the appellant’s description of the evidentiary rule permitting non-expert opinion evidence. The respondent contends, however, that there is no evidence about the store clerk’s background or experience that would justify allowing him to give the opinion he offered. Furthermore, the respondent argues that the evidence of the store clerk about the appellant’s apparent inexperience with firearms was of no significance in the case. It was never the appellant’s position that he was inexperienced around firearms.
[26] The store clerk’s opinion evidence was admissible. Although he was not asked directly about his experience, it is clear from his testimony that he had considerable experience with customers seeking to purchase firearms. As he explained in his evidence, part of his job involved questioning customers to get a sense of their level of experience and expertise with firearms so as to be able to suggest the most suitable firearm.
[27] Given the store clerk’s experience as a gun salesman, it was open to him to present his observations of the appellant’s behaviour and conduct by way of an opinion as to the appellant’s experience as a gun handler. There was no danger that the jury would have been misled by this evidence. The trial judge erred in instructing the jury to disregard the store clerk’s evidence about the appellant’s apparent lack of experience with firearms. . R. v. Nagy
In R. v. Nagy (Ont CA, 2023) the Court of Appeal considers when non-expert opinion evidence is admissible, here before a jury:[62] The trial judge, after considering R. v. Graat, [1992] 2 S.C.R. 819 and R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, concluded that Mr. Lodico’s evidence would assist the jury, who would not be expected to have an understanding of infrared technology or the nature of heat signatures. He later concluded that Mr. Lodico’s experience and training qualified him to explain what was seen on the video.
[63] As indicated in Graat, non-expert opinion evidence is admissible where it is practically impossible to separate the witness’s opinion from the factual observations upon which the opinion is based. Lay opinion evidence has been admitted on a wide variety of subjects, including identification of handwriting, persons and things, apparent age, the bodily plight or condition of a person, the emotional state of a person, the condition of objects, estimates of speed and distance, and intoxication, which was the issue in Graat.
[64] In R. v. Walizadah, 2007 ONCA 528, 223 C.C.C. (3d) 28, this court upheld a trial decision to allow a police officer to give lay opinion evidence, describing what he saw on a surveillance video. As here, his evidence was limited. The trial judge ruled that he could say whether a particular vehicle was round or square, or light or dark in colour.
[65] Here, none of the policy reasons that might justify excluding this kind of evidence were a factor. There was no risk of confusing the issues, misleading the jury, unfair surprise, or undue consumption of time: see Graat, at p. 378.
[66] I am not persuaded that the jury would have been overwhelmed by this lay opinion evidence. The presence of the vehicles and persons, at the relevant times, was largely confirmed by the evidence of Mr. MacGarvie and the other witnesses. . Canada (Attorney General) v. Mosaic Forest Management Corporation
In Canada (Attorney General) v. Mosaic Forest Management Corporation (Fed CA, 2022) the Federal Court of Appeal held that technical evidence may not need to be qualified as from an expert, since it may not be opinion evidence (and thus doesn't require the expert exception):[19] Turning to the paragraphs struck out from the affidavit of Mr. Lee, these paragraphs are not opinion evidence at all but rather merely attach and provide a summary of data drawn from a report from Statistics Canada that is attached to Mr. Lee’s affidavit as an exhibit. No opinion whatsoever is proffered in the impugned paragraphs. As in The Owners, Strata Plan NES 97 v. Timberline Developments Ltd., 2011 BCCA 421 at paras. 45–46, 24 B.C.L.R. (5th) 234, and in R. v. Ajise, 2018 ONCA 494 at para. 23, 428 D.L.R. (4th) 586, aff’d on other grounds, 2018 SCC 51, [2018] 3 S.C.R. 301, upon which Mosaic relies, compilations or explanations of data drawn from exhibits—like those contained in the impugned paragraphs of Mr. Lee’s affidavit—do not constitute opinion evidence. . Canada (Attorney General) v. Mosaic Forest Management Corporation
In Canada (Attorney General) v. Mosaic Forest Management Corporation (Fed CA, 2022) the Federal Court of Appeal considers opinion evidence, it's inadmissibility and exceptions:[15] Opinion evidence may be characterized as evidence where a witness offers an inference from observed facts as opposed to evidence of the witness’ own first-hand factual observations. The following excerpt from Paciocco, Paciocco & Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) at 233–34, provides a useful discussion of the difference between factual and opinion evidence:An inference from observed fact is different than the observed fact itself. A witness who says a wound was life-threatening, for example, is drawing an inference from an observed fact and is therefore offering an opinion. If that same witness merely describes the wound by saying either “the victim had a wound in his neck” or “the carotid artery was severed,” that witness is simply reporting an observed fact. [16] There are two exceptions to the general rule that opinion evidence is inadmissible.
[17] First, non-expert witnesses may offer their observations in the form of opinion where: (1) they are in a better position than the trier of fact to form a conclusion; (2) the conclusion is one that a lay person can make; (3) the witness has the necessary experience to draw the conclusion; and (4) the opinion is a "“compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions”" (The Law of Evidence at 239; Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819 at 837, 840, 144 D.L.R. (3d) 267 [Graat]; Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236 at para. 79, 286 A.C.W.S. (3d) 369; Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 162 O.A.C. 186 at para. 17, 215 D.L.R. (4th) 193 (ONCA)).
[18] Second, properly qualified experts may offer opinions as to certain matters where they possess the specialized training or expertise required to provide inferences beyond the ability of the trier of fact to draw. In the Federal Court, as noted by the Case Management Judge, rule 52.2 of the Rules requires, among other things, that an affidavit of an expert witness set out the expert’s qualifications and be accompanied by a certificate confirming the expert’s agreement to conform to the Code of Conduct for Expert Witnesses set out in the Schedule to the Rules.
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[26] Arguably, these sorts of opinions are the sort of evidence witnesses with many years experience in the forestry industry, like Messrs. Gough and Kaps, may be entitled to offer as lay opinion evidence. They are perhaps similar to the views, for example, of a police officer about matters within police training and expertise, such as opining on the practices of drug couriers, which were found to be admissible as non-expert lay opinion evidence in R. v. MacKenzie, 2013 SCC 50 at paras. 55–65, 363 D.L.R. (4th) 381; and R. v. Nolet, 2010 SCC 24 at para.48, 320 D.L.R. (4th) 1.
[27] In Graat, the Supreme Court of Canada noted at pages 839 to 840 that it is for the trier of fact to decide whether to admit lay opinion evidence and to determine what weight to give it. . R. v. Daou
In R. v. Daou (Ont CA, 2021) the Court of Appeal considered the admissibility of police opinion evidence about the credibility of another witness:(1) Admissibility
[67] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. said, at para. 14: “To the modern general rule that all relevant evidence is admissible there are many qualifications. One of them relates to opinion evidence, which is the subject of a complicated exclusionary rule.” That case concerned the parameters of expert opinion evidence, whereas this case is about the non-expert opinion evidence given by a police officer.
[68] Det. Monette was not qualified as an expert, nor could he have been. He had no special power, training, or ability to determine if someone is telling the truth. Moreover, had he been offered as an expert, his impartiality and lack of independence would surely have been fatal to being so qualified: see White Burgess, at paras. 46-53. Det. Monette’s opinion about the truthfulness of the appellant’s confession was inadmissible. It was for the jury to answer this question, without undue influence from a high-profile witness who had no business opining on the issue.
[69] Generally speaking, only properly qualified experts may provide opinion evidence, and only about matters of fact, not about legal issues. In Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, the Supreme Court of Canada considered whether lay persons, in that case a police officer, could provide an opinion about whether a person’s ability to drive was impaired by the consumption of alcohol.
[70] In a searching analysis, Dickson J. (as he then was) concluded that, as a general rule, lay persons cannot give opinion evidence, but noted that the law recognized a number of exceptions, such as the identification of handwriting, a person’s apparent age, the emotional state of a person, and others: at p. 835. However, he drew a bright line between opining on matters of fact on the one hand, and legal standards on the other. Dickson J. said, at p. 839: “A non-expert witness cannot, of course, give opinion evidence on a legal issue as, for example, whether or not a person was negligent.” Similarly, an opinion that an accused person is guilty would be subject to the same prohibition.
[71] The Supreme Court addressed this issue in R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716. In that case, the victim, Jack Kong, had been stabbed and robbed. He said his former friend Duc Van did it. At trial, Mr. Van claimed that someone else had attacked Mr. Kong. Mr. Van was convicted at trial. On appeal, this court set aside the convictions because one of the Crown’s key witnesses, a police officer, offered his opinion on Mr. Van’s guilt, and left the suggestion that his opinion was based partly on information that was not before the jury. He was also permitted to give evidence that fell into the category of investigative hearsay. Winkler C.J.O., in dissent on this point, would have dismissed the appeal by applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code: R. v. Van, 2008 ONCA 383, 92 O.R. (3d) 462, at para. 47, rev’d 2009 SCC 22, [2009] 1 S.C.R. 716.
[72] By a majority of 5:4, the Supreme Court overturned this court’s decision. All nine judges agreed that the disputed evidence was admissible, but only for a limited purpose. They also agreed that the jury should have been provided with a limiting instruction about the proper use of the investigative hearsay and police opinion evidence. The jury received no such instruction. The majority was prepared to apply the proviso; the minority was not.
[73] Although the main issue before the Supreme Court concerned the impact of the failure to provide a limiting instruction, both the majority and minority judgments are helpful on the question of the admissibility of the disputed evidence.
[74] For the majority, LeBel J. held, at para. 39, the evidence of the officer’s “statement of his opinion of the respondent’s guilt was unwarranted and clearly foreclosed by the jurisprudence, due to the danger of the jury uncritically accepting the witness’s opinion without drawing their own conclusions about the evidence (e.g. R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49)” (emphasis added).
[75] LeBel J. qualified his comments about admissibility. He agreed with this court that investigative hearsay and police opinion evidence were admissible as they pertained to the defence assertion of an inadequate police investigation: at para. 33, citing R. v. Dhillon (2002), 2002 CanLII 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont. C.A.); R. v. Mallory, 2007 ONCA 46, 220 O.A.C. 239. See also Lisa Dufraimont, “Annotation to R. v. Van” (2009), 65 C.R. (6th) 195.
[76] In his reasons for the dissenting judges, Cromwell J., at para. 82, accepted the majority’s characterization of the opinion about Mr. Van’s guilt as clearly unwarranted and held that “[t]he opinions of the police on the question of an accused’s guilt have no place in the jury’s deliberations”: at para. 86. At para. 81, he cited the reasons of Major J. in D.D., where he said, at para. 49:A basic tenet of our law is that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience. This is a commendable principle since it is the task of the fact finder, whether a jury or judge alone, to decide what secondary inferences are to be drawn from the facts proved. [77] Cromwell J. elaborated on the dangers of the officer’s opinion evidence in the following paragraph, which contains obvious parallels to the circumstances of this case, at para. 82:It is worth remembering that there are at least three dangers in receiving opinion evidence of the sort the officer gave in this case. First, it usurped the function of the jury by drawing critical inferences — a conclusion about the respondent’s guilt — from the facts known to the witness. Second, it obscured the factual basis for the conclusions reached. In this case, it was at best unclear and at worst a likely inference that the officer’s opinion was based on evidence other than that which had been admitted before the jury.[[2]] Finally, there was a danger that, given the long experience and excellent career history of Det. Sgt. Nealon, the jury would attach undue weight to his opinion: see, for example, Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 839-40. [78] All of the judges in Van agreed that, in the absence of an allegation of an inadequate investigation, the Crown is not permitted to adduce police opinion evidence (or investigative hearsay evidence). If such evidence is adduced, there must be a cautionary instruction that this type of evidence cannot be used to infer guilt.
[79] The admissibility of police opinion evidence has arisen in this court from time to time, sometimes in conjunction with demeanour evidence. For example, in R. v. Short, 2018 ONCA 1, 139 O.R. (3d) 1, the appellant was convicted of killing his wife. The defence took the position that the police had too quickly jumped to the conclusion that the appellant was responsible, to the exclusion of other suspects.
[80] In cross-examination, one of the police officers testified that, in his opinion, the appellant did not react to being questioned about the murder in the way that an innocent person would have reacted. Although the appeal was allowed on other grounds, the court addressed the obligations of the trial judge in these circumstances. Applying Van, Doherty J.A. held that the trial judge had to instruct the jury: (1) that the officer’s “opinion about the appellant’s veracity was irrelevant to their deliberations”; and (2) his “opinions about the appellant’s demeanour and the inferences that could be drawn from that demeanour could not be used by the jury as evidence of the appellant’s guilt”: at para. 58.
[81] Similarly, in R. v. Borel, 2021 ONCA 16, 153 O.R. (3d) 672, the accused was charged with attempted murder for setting the victim on fire. He gave a lengthy interview to the police in which he denied responsibility. At trial, the Crown adduced the evidence of the interviewing police officer. As in this case, the officer was very accomplished, with 27 years of experience, having worked in major crimes and homicide. As Nordheimer J.A. observed, at para. 30: “He made a point of telling the jury that he had interviewed approximately 500 accused persons during his 17 years as a criminal investigator.” Without objection, the officer gave evidence about the accused’s demeanour. He offered his opinion that his denials were “relatively weak” and that, based on his experience and training, “if someone’s in custody for an offence, a serious offence that they … did not commit, they would … likely be denying it strongly and asking why they’re in custody”.
[82] Nordheimer J.A. concluded that this opinion evidence was highly prejudicial. He relied on R. v. Quazi, 2014 ONCA 94, in which a police officer was permitted to give his opinion that the appellant’s demeanour during his police interview was indicative of guilt: at para. 36. In allowing the appeal in Quazi, this court held, at para. 7: “Such an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant’s trial.”
[83] In light of this line of authority, the opinion evidence offered by Det. Monette was inadmissible.
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