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Evidence - Lay Opinion (2). R. v. Jenkins
In R. v. Jenkins (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal, here involving "the lay opinions of five police officers that the appellant’s conduct observed during surveillance was, or was consistent with, drug trafficking":[3] I would allow the appeal and order a new trial. The trial judge erred in allowing the five surveillance officers to give the impugned opinion evidence. The Crown did not seek to qualify the five officers as experts. Thus, they could not give expert opinion evidence. In any event, the form of the evidence was impermissible even had they been qualified as experts. Nor was the opinion evidence of the five officers within the scope of lay opinion evidence permitted under the principles enunciated in Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819. Given the prominence of the opinion evidence in the trial and the risk of misuse of improperly tendered opinion evidence in a jury trial, I would not apply the curative proviso.
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(i) The impugned opinion evidence
[19] I will not summarize the opinion evidence of all of the five surveillance officers. The substance was the same for all five. Repeatedly, during the course of examinations-in-chief, after each officer explained a particular factual observation of the appellant during surveillance, Crown counsel then asked a question to the effect of: What did you make of this observation, in your experience? I extract excerpts from the evidence of three surveillance officers to provide the flavour of the impugned opinion evidence.
(ii) This court’s decision in Nguyen
[20] In Nguyen, this court considered the same type of evidence from an officer who was not qualified as an expert to give opinion evidence. After giving evidence about surveillance observations of Mr. Nguyen, the officer testified that in his opinion what he had observed – one male picking up or dropping property off to another male – was “consistent with drug-related activity.”
[21] This court held that the trial judge in Nguyen erred in admitting the officer’s opinion evidence. The Court started with the well-established proposition that opinion evidence is presumptively inadmissible: Nguyen at para. 48, citing R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49. The opinion evidence was improperly admitted in Nguyen because it did not satisfy the admissibility requirements for either expert opinion evidence or lay opinion evidence.
[22] In relation to expert opinion evidence, there were two problems in Nguyen. First, the Crown had not established the officer’s expertise to offer the opinion he provided. Second, the opinion provided by the officer did not meet the necessity requirement for admissibility of expert evidence. The opinion that the conduct of picking up or dropping off property between two people “was consistent with drug-related activity” was not a matter that non-experts – a trier of fact – are unlikely to form a correct judgment about: see also R. v. Gill, 2017 ONSC 3558, at paras. 41-44, per Fairburn J., as she then was.
[23] This court further held that the officer’s opinion evidence – that the conduct observed was consistent with drug trafficking – did not fall within the scope of lay opinion evidence: Nguyen, at para. 53. Lay opinion evidence is admissible where a witness is “merely giving a compendious statement of facts that are too subtle or complicated to narrate separately and distinctly”: Graat, at p. 841. Where a surveillance officer gives evidence about their observations of a suspect (properly admissible), they can relate the evidence of the factual observations they made without providing the further opinion evidence that the conduct observed is consistent with drug trafficking: see also Gill, at paras 43-44.
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[30] To be clear, I am not suggesting that expert opinion evidence could not be led on the issue of indicia of trafficking if a trial judge was satisfied that it met the White Burgess admissibility criteria: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. This court and the Supreme Court have recognized that expert opinion evidence may be tendered on issues related to drug trafficking, such as “chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins”, where the evidence is based on specialized knowledge outside the knowledge of a lay trier of fact: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 18; Nguyen, at para. 52.[3]
[31] I would also emphasize that where opinion evidence is tendered on issues related to drug trafficking, it must be limited to providing the jury with evidence in general terms about the area of expertise (for example, drug pricing; trafficking quantities; methods of drug trafficking), which they may consider and, if they accept it, apply as part of their fact finding to decide what inferences or conclusions to draw from other evidence (for example, surveillance evidence). Expert opinion may not extend to conclusions or inferences to be drawn about the accused’s conduct. The inference-drawing process is part of the jury’s fact-finding role, and not the province of the expert witness. Thus, an expert providing opinion evidence about indicia of drug trafficking may not opine that the particular acts of the accused were drug trafficking or were consistent with drug trafficking. Those questions are for the trier of fact: R. v. Abbey (2009), 2009 ONCA 624 (CanLII), 97 O.R. (3d) 330 (C.A.), at paras. 30-31, 98-102; Gill, at para. 44; Sekhon, at paras. 46 and 50; Nguyen, at paras. 50-51; David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 234. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal by a public interest advocate's application that alleged that the "the process by which judges are appointed under section 96 and 101 of the Constitution Act, 1867" "is subject to political discretionary control, influence, and interference by the federal Minister of Justice and Cabinet".
The court dismisses aspects of the evidence advanced by the applicants - largely "newspaper articles, editorials, and opinion pieces published in newspapers or on newspapers’ websites" - here on fundamental principles of hearsay and opinion evidence law:[3] As concerns the evidentiary rulings, the Federal Court struck several paragraphs in the two affidavits of one of the appellants, Duff Conacher, as well as several exhibits to those affidavits. The Federal Court found that these paragraphs and exhibits were either inadmissible hearsay evidence or inadmissible opinion evidence that was not tendered by a qualified expert witness. The Federal Court also held that the opinion evidence that the appellants sought to admit was irrelevant to the issues before it since the Court was required to apply an objective test to ascertain whether judges and courts may be reasonably perceived as independent.
[4] Much of the evidence struck by the Federal Court consisted of newspaper articles, editorials, and opinion pieces published in newspapers or on newspapers’ websites. In addition, the Federal Court struck a letter from the Canadian Judicial Council (the CJC), a 2016 report from the International Commission of Jurists of Canada (the ICJC), an article written by a legal academic, and submissions from the President of the Canadian Bar Association (the CBA) and other associations regarding the judicial appointment process. The Federal Court found that the latter sort of submissions and the academic article, while inadmissible as opinion evidence, could nonetheless be referred to by the appellants as authorities in support of their submissions.
[5] Before us, the appellants submit that the Federal Court made palpable and overriding errors in finding some of the foregoing evidence inadmissible. More particularly, they submit that the Federal Court ought to have found that two of the newspaper articles and the letter from the CJC, which the Federal Court struck as inadmissible hearsay, met the twin criteria for admissibility of reliability and necessity, and that the Federal Court erred in concluding otherwise. They also submit that the Federal Court erred in finding some of the evidence to be inadmissible opinion evidence, arguing that, contrary to what the Federal Court found, some of the opinion pieces published in newspapers, the report from the ICJC, and the statement from the President of the CBA, that the Federal Court characterized as opinion evidence, should have been accepted as reliable and necessary factual evidence or as being similar to evidence that relied on in Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85 (QL) [Libman], Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827 [Harper], and R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527 [Bryan].
[6] I disagree and, with one minor exception that is not germane to the outcome of this appeal, see no error in any of the Federal Court’s evidentiary rulings.
[7] Newspaper articles are generally inadmissible as hearsay and lack the necessary reliability to be admitted as evidence before a court: see e.g. Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 104, 292 A.C.W.S. (3d) 678 at para. 39; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at para. 150, rev’d (on other grounds) 2023 SCC 17, 481 D.L.R. (4th) 581. There is no basis for setting aside the Federal Court’s conclusion regarding the inadmissibility of the newspaper articles that the appellants allege should have been admitted.
[8] I agree with the appellants that the Federal Court mischaracterized Exhibit "“F”" to the first affidavit of Mr. Conacher as a newspaper article at paragraph 33 of its Reasons. In fact, as the Federal Court acknowledged at paragraph 32 of its Reasons, Exhibit "“F”" to the first affidavit of Mr. Conacher is a letter taken from the website of CJC. In that letter, the CJC reported, among other things, that a member of the judiciary acknowledged that she provided the names of potential judicial appointments to the office of the Minister of Justice in response to inquiries.
[9] Despite this mischaracterization, I agree with the Federal Court that Exhibit "“F”" to Mr. Conacher’s first affidavit includes inadmissible hearsay. The fact that a member of the judiciary acknowledged providing names of potential future appointments, as reported in the CJC’s letter, is hearsay. I see no reviewable error in the Federal Court’s conclusion that the appellants failed to establish the necessity of tendering the letter to establish the foregoing fact in light of their failure to tender any evidence regarding their inability to obtain direct evidence of the facts reported in the letter. In any event, the fact that consultations about appointments are undertaken by the Minister of Justice is not and was not denied by the respondent. Other such consultations are referenced in Exhibits "“C”", "“D”" and "“E”" to Mr. Conacher’s second affidavit that the Federal Court allowed to stand.
[10] Turning to the items struck as being opinion evidence that the appellants impugn, the opinion pieces that appeared in newspapers or on websites are not factual, and to the extent they set out factual statements, are inadmissible hearsay for the reasons already noted. The portions of the report from the ICJC that the appellants seek to rely on is hearsay to the extent it reports on undisclosed surveys completed by ICJC members. There was no evidence from the appellants to support the reliability or the necessity of the admission of these hearsay statements. The balance of the ICJC report either outlines the appointment process, which was already before the Federal Court through direct evidence from the respondent’s witness, or provides the opinion of the ICJC as to how the judicial appointment process could be modified. As for the letter from the President of the CBA, it sets out the opinion of that Association and is not factual.
[11] It is not disputed that these opinions were not offered by an expert and were not subject to cross-examination. As noted in Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772 at paragraph 43, where relevant, evidence about surveys of public opinion must be presented through a duly-qualified expert, who can be cross-examined about matters such as the survey design and conduct. Moreover, the expressions of opinion in the newspaper opinion pieces, the ICJC report, and the letter from the President of the CBA are distinguishable from the surveys and reports referred to in the Libman, Harper and Bryan cases. As the respondent rightly notes, the reports in those cases were either introduced through experts or were of an entirely different nature, such as the Royal Commission report that was before the Court in Bryan. None of the foregoing cases involved a party seeking to introduce opinion evidence through a lay witness, similar to what the appellants sought to tender in this case. . R. v. Moreira
In R. v. Moreira (Ont CA, 2023) the Court of Appeal considered (and allowed) an appeal on the evidentiary use of lay opinion, here regarding a physical beating resulting in death:[30] The Crown claims that lay witnesses may express their opinion on the bodily plight or condition of a person and in any event, the opinion evidence was admissible as it was “a mere shorthand or convenient way to summarize the attack and explain, compendiously, what the witnesses observed”: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 837-8.
[31] In Graat, the Supreme Court of Canada enunciated a “helpfulness” standard, whereby lay opinion evidence can be received if the witness is providing a “compendious statement of facts” in circumstances where the witness “had an opportunity for personal observation … [and is] in a position to give the Court real help”: Graat, at pp. 836 and 840; Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed. (LexisNexis, 2022), at § 12.02. Lay opinion evidence may assist witnesses to recount events more accurately than if the testimony were limited to factual observations, and it may remove the sometimes artificial distinction between fact and opinion in this context: Graat, at pp. 835-7 and R. v. H.B., 2016 ONCA 953, 345 C.C.C. (3d) 206, at paras. 69-70.
[32] The non-exhaustive list of subjects upon which witnesses can provide lay opinion evidence includes: (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person e.g., whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things e.g., worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance: Graat, at p. 835.
[33] The court in Graat, at p. 835, provides a framework for the admission of lay opinion evidence:Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of law or policy. [34] Policy grounds include the danger of confusing issues, misleading the jury, unfair surprise, and undue consumption of time adducing the evidence: Graat, at p. 836.
[35] Lay opinion evidence about the apparent health of another person, including whether a witness believes the person to be dead when they approach him, falls within the “bodily plight” category and would therefore be admissible even when that opinion goes to the ultimate issue in the case: Graat, at pp. 836-7.
[36] In this case however, the lay opinion evidence was not evidence of the bodily plight of Noureddine; it was evidence that he would likely die from a certain application of force. This evidence was not simply summarizing observations; it was drawing an inference about the type of force likely to cause death. It should therefore have been subject to an analysis by the trial judge as to whether it was relevant and, if so, whether its probative value was outweighed by policy considerations: Graat, at p. 835.
[37] The trial judge has an important gatekeeping function to decide the allowable scope of opinion evidence. This court in R. v. Umeadi, 2023 ONCA 7, at para. 36, leave to appeal refused, [2023] S.C.C.A. No. 171, emphasized the importance of vetting issues of lay opinion evidence with the trial judge in advance to allow the trial judge “time to rule on the admissibility of the evidence and craft any instructions that are warranted in the circumstances of the case.” While this comment was directed toward the parties in that case, it highlights the important function that an admissibility hearing performs with respect to lay opinion evidence.
[38] In this case, the trial judge should have considered whether the witnesses had the knowledge and experience to offer such an opinion: Sopinka et al., at § 12.02. The trial judge also should have assessed the potential harm that could result from the opinion evidence. In particular, the trial judge should have considered the effect of the lay witnesses’ knowledge that Noureddine had in fact died of his injuries before they gave their testimony, and whether this created a risk of cognitive distortion by looking at the evidence through the lens of knowledge acquired after the fact.
[39] If the evidence passed the threshold, while it would have been appropriate to note that the proposition that they were engaging in after-the-fact reasoning was never put to the witnesses, the trial judge should have warned the jury that there was nonetheless a risk they were doing so, which could give rise to bias that could affect the ultimate weight given to it: R. v. Salmon (2012), 258 C.R.R. (2d) 219 (Ont. S.C.), at paras. 4-9. The failure to do so created a significant risk of prejudice in the deliberative process.
[40] The need for a hearing on the admissibility of this evidence is all the more important as the lay opinion in this case may well not be admissible.
[41] In R. v. J.F. (2006), 2006 CanLII 20836 (ON CA), 210 C.C.C. (3d) 405 (Ont. C.A.), at paras. 14-15, Weiler J.A. for the court held that a new trial was warranted after the complainants’ mother in a sexual assault trial said the appellant placed serious restrictions on the complainants (his step-daughters) and that this all made sense to her when her daughters told her they had been assaulted. Her opinion was that the restrictions were connected to the sexual abuse, which led her to believe her daughters. This court held that,The mother was entitled to testify as to the restrictions the appellant had placed on the complainants and his conduct towards them. She was not, however, entitled to give her opinion as to the inference to be drawn from that conduct as this was the function of the triers of fact.
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In any event, the trial judge ought to have reminded the jury that it was their role to decide on the credibility of the witnesses and the opinion of any witness on the issue of the complainants’ credibility or the inferences to be drawn from the evidence was not relevant. Instead, the trial judge reviewed the evidence without comment. Combined with the trial judge’s earlier omission, I am of the opinion that the errors warrant a new trial. [Emphasis added.] [42] Similarly, in R. v. Hayatibahar, 2022 ONSC 3692, a case arising out of a motor vehicle accident, the court excluded lay opinion evidence that related to injury causation. The Crown sought to rely on lay witness evidence that an abrasion on the accused’s left shoulder was a seatbelt rash, thereby identifying him as the driver of the car. The court refused, at para. 96, to allow the opinion evidence as to the cause of the injuries on the basis that, “[t]hey are being asked to look at an injury and offer their view on what caused that injury based on their experience with seeing other people with what are said to be similar injuries. The mechanics of injury causation are not, in my view, the proper subject for lay opinion.”
[43] The inference drawn by Bruton and Mihic in this case, is that the type of force used in the assault was likely to cause death. This inference goes directly to the issue central to Smith’s conviction: that is, whether Smith knew or ought to have known that Noureddine would likely die from the assault. Smith admitted that he killed Noureddine by punching and kicking him several times, and kneeing him while he was in a head lock; the only issue was whether he intended to kill Noureddine.
[44] While the Supreme Court of Canada in Graat, at pp. 836-7, found that a lay opinion going to the ultimate issue in a case was not necessarily inadmissible, these opinions continue to be treated with caution: Sopinka et al., at § 12.02; and David Watt, Watt’s Manual of Criminal Evidence (Proview, 2023), at § 30.01.
[45] Therefore, while the fact that the opinion went to the ultimate issue in this case may not have made the opinion inadmissible per se, it was incumbent on the trial judge to treat that opinion with caution and consider whether it met the test for admissibility set out in Graat.
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[104] While I would dismiss most of the grounds of appeal raised by the appellant Smith, I would allow his appeal in respect of the introduction of the lay opinion as the trial judge failed to hold a voir dire to determine the admissibility and use of opinion evidence or warn the jury about the risk of after-the-fact reasoning. As noted above, such reasoning may give rise to bias and thereby create a risk of prejudice in the deliberative process on a significant issue.
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