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Evidence - Lay Opinion (3). 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. Hayatibahar
In R. v. Hayatibahar (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against convictions for "one count of criminal negligence causing death, one count of impaired driving causing death, and three counts each of criminal negligence causing bodily harm and impaired driving causing bodily harm".
Here the court considers a point of lay opinion evidence:[27] Applying the principles concerning the admissibility of lay opinion evidence in Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, the trial judge held that the Crown could have called an expert to prove the cause of the injuries. He pointed to other cases in which opinion evidence had been called on this very issue: see e.g., R. v. McKeown, 2010 ONSC 1492. However, the trial judge held that the Crown was not obliged to call expert evidence, noting that a “trier of fact may be perfectly placed to draw inferences and reach conclusions from the available evidence even in the absence of expert evidence.” And that is what he did. The Crown does not challenge the trial judge’s decision not to admit the lay opinion evidence and, of course, nor does the appellant. However, the appellant submits that, in the absence of expert evidence on the issue, the trial judge’s finding that the appellant was the driver was unreasonable. . R. v. Wheeler
In R. v. Wheeler (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for both "impaired driving causing death and criminal negligence causing death".
Here the court considers lay witness opinion and non-opinion testimony, and when they were allowable in this case:3. Did the trial judge err by admitting, relying upon, and preferring inadmissible lay opinion evidence of Mr. D’Aoust?
[30] Lay witnesses may only testify about facts within their knowledge, observation, and experience: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49. Witnesses are providing opinion evidence when they make inferences from an observed fact: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 42. Opinion evidence by lay witnesses is therefore presumptively inadmissible because it is the trier of fact’s responsibility to make inferences from the proven facts: D.D., at para. 49; Abbey, at p. 42.
[31] I am persuaded that Mr. D’Aoust offered opinion evidence when he described the tow strap as “pretty short” and a “short tow strap”, which were conclusions he drew from observing the characteristics of the tow strap (“opinions about the length”). He also implicitly communicated his opinion about what he considered to be safe towing practices when he testified about his practice using a 25-foot tow rope to give the rear driver a “chance” to “put the brakes on” and when he explained his practice by saying “because you never know what’s going to happen with the guy in the front” (“opinions about safe towing practices”). I will examine these two levels of opinion evidence separately.
a. Opinions about the length
[32] In my view, Mr. D’Aoust’s opinions about the length of the tow rope as “short” were admissible. Although the role of lay witnesses is to communicate their factual observations and not their opinions, the limitations of language and the complexity of some observations can make it functionally impossible for a witness to identify or articulate the entire factual basis supporting an observation they have made without resorting to conclusory statements: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at pp. 837-38; R. v. K.S., 2019 ONCA 474, at para. 10. Examples include the identification of handwriting, persons, or things; apparent age; the bodily plight or condition of a person; the emotional state of a person; the condition of things; certain questions of value; and estimates of speed and distance: Graat, at p. 835; R. v. H.B., 2016 ONCA 953, 345 C.C.C. (3d) 206, at para. 69. As Dickson J. (as he then was) explained in Graat, at p. 841, lay witnesses can present their relevant, personal observations as opinions where they “are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”. Trial judges therefore have discretion in such cases to admit expressions of lay opinion on this basis, if the probative value of the lay opinion outweighs competing policy considerations: Graat, at pp. 836, 839-40.
[33] I can find no fault in the discretionary decision of the trial judge to permit Mr. D’Aoust to express his observations in the way that he did. Realistically, Mr. D’Aoust, who did not have the opportunity to measure the tow strap, could do no more in describing his factual observations than to estimate its length and describe it qualitatively.
b. Opinions about safe towing practices
[34] In my view, the trial judge did not err in permitting Mr. D’Aoust to describe as a lay witness the care he exercises when involved in towing ATVs, even though by doing so he was by implication disclosing his opinion about what is safe and what is not. As I will explain, a trier of fact can use such testimony as an exemplar of the standards of care observed when engaging in the activity in question, but such testimony cannot be relied upon as proof of which practices are safe and which ones are not. The trial judge did not misuse this evidence.
[35] Since Mr. Wheeler was charged with criminal negligence the trial judge had to determine the standard of care that a reasonably prudent person would observe when towing an ATV, so that he could judge Mr. Wheeler’s conduct against that standard: see R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at paras. 21, 38; R. v. Sillars, 2022 ONCA 510, 162 O.R. (3d) 664, at para. 71, leave to appeal refused, [2022] S.C.C.A. No. 431. In R. v. Gardner and Fraser, 2021 NSCA 52, 406 C.C.C. (3d) 156, at para. 73, the Nova Scotia Court of Appeal said the following about the determination of an applicable standard of care:[T]he content of the standard of care … can be determined … by credible expert opinion evidence or other evidence that permits the trier to draw the necessary inferences. That evidence may include what others do or should do in similar circumstances and any policies or directives relevant to the conduct. [Emphasis added.] [36] This is not a case that required expert opinion evidence to resolve the standard of care. Expert evidence is needed only where “ordinary people are unlikely to form a correct judgment about [the standard of care] without guidance from an expert”: Sillars, at para. 75; see also R. v. Clare, 2013 ONCA 377, at para. 10. Since towing ATVs is not an expert activity, but is engaged in by ordinary people, a witness need not be an expert to provide such evidence.
[37] It is not uncommon for evidence relevant to the applicable standard of care to include first-hand factual testimony by participant witnesses describing the level of care they observe when engaged in such activities and why they would do so. For example, in Sillars the trial judge permitted two participant witnesses with experience in canoeing to comment that they “would not canoe on the Muskoka River in April because of the dangerous water conditions”: Sillars, at para. 73. This court considered that testimony in rejecting the suggestion that a finding of criminal negligence was unreasonable: Sillars, at para. 76. In Doering, the accused was allowed to describe how his conduct conformed to his usual practices to show that he had not behaved negligently: Doering, at para. 90.
[38] In my view, Mr. D’Aoust’s testimony that he always used a 25-foot tow rope to allow the rear ATV driver a chance to control their speed and to brake was therefore admissible for the permissible purpose of assisting the trial judge in identifying the applicable standard of care, and that is how it was used. When Mr. Wheeler’s trial counsel challenged Mr. D’Aoust’s testimony as straying into expert opinion evidence, the Crown made clear that it was not offering Mr. D’Aoust’s testimony as expert evidence relating to the appropriateness of the length of the tow strap. And the trial judge was equally clear when addressing the same objection that he was receiving this evidence only to confirm Mr. D’Aoust’s observation that the tow strap was shorter than what he would have used. He said explicitly that he does not accept Mr. D'Aoust’s evidence “for the opinion that as a result it was unsafe”.
[39] I accept that there is language in the reasons for judgment that may lead to the suggestion that the trial judge ultimately relied on Mr. D’Aoust’s testimony as opinion evidence that Mr. Wheeler’s conduct was unsafe, but those reasons must be read in the context of the trial judge’s undertaking not to misuse the evidence in precisely this way. Moreover, it is plain in his detailed reasons that the trial judge did not base his conclusion that the tow setup was unsafe on Mr. D’Aoust’s opinion, but rather on his own evaluation of the evidence, based primarily on the collision reconstruction evidence that Cst. Roy presented. The trial judge’s analysis when rejecting Mr. Wheeler’s argument that there was nothing inherently dangerous about the tow setup includes two important considerations: the length of the tow strap used did not practically allow Ms. Stansel to avoid the offset, and once the offset occurred, Ms. Stansel had practically no opportunity to avoid the accident. Both these findings were available to the trial judge based on the admissible expert evidence that Cst. Roy provided about the distances and angles of hypothetical offsets and the time to impact once the tow strap became caught.
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