Canadian Criminal Evidence/Opinion

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When a witness is put on a stand their primary role is to recall their knowledge of some past event at issue in the case. As a general rule no witnesses are allowed to give any opinion. However, in practice, the line between fact and opinion can never be clearly drawn, so often exceptions will be made. Opinion, in certain cases, can even be useful to the trier of fact in coming to their conclusions. Experts are generally allowed to give their opinion in matters within their expert knowledge that the trier cannot easily deduce themselves. To address these situations the law of opinion is divided into two area: lay opinion and expert opinion.

Contents

[edit] Lay opinion

Lay opinion, being an opinion of a person who is not qualified as an expert, can be admissible in trial where the opinion constitutes a "compendious statement" of the observations of a witness in relation to matters of common experience where no special knowledge is required and the opinion is so close to fact that it is impossible to separate the two. [1] This is an exception to the rule that non-experts cannot give opinion evidence.

Lay opinion has been found to be valid in relation to the following:

  1. the identification of handwriting, persons and things;[2]
  2. apparent age;[3]
  3. the bodily plight or condition of a person, including death and illness;[4]
  4. the emotional state of a person—e.g. whether distressed, angry, aggressive, affectionate or depressed; [5]
  5. the condition of things—e.g. worn, shabby, used or new; [6]
  6. certain questions of value;[7]
  7. estimates of speed and distance;[8]
  8. visual identification of persons in videos; [9]
  9. visual identification of persons in pictures;[10]
  10. visual identification of persons in court;[11]
  11. visual identification of vehicles; [12]
  12. audio identification; [13]
  13. voice identification;[14]
  14. identification of a shoe tread. [15]

Other Case Law:

  • Ilina (2003), 172 CCC 240 (Man. CA)

[edit] Expert opinion

Expert opinion is testimonial evidence that gives an opinion on facts perceived by him or another that concerns an issue that is likely outside the experience and knoweldge of the trier-of-fact (i.e. a lay person). [16] The expert must have special knowledge in the matter [17] and the opinion must be reasonably necessary to assist the trier-of-fact to make a proper judgment. [18] The expert is not to testify to facts, but rather only opinion to allow the trier-of-fact to draw inferences. [19]

[edit] Qualification

A trial judge must determine on a voir dire whether the individual is qualified as an expert, and if so, what the "nature and scope of the proposed expert evidence" will be.[20] The qualification process is one of delineating the boundaries of the evidence and the language used. [21]

The judge cannot permit the expert to give an opinion on common matters or matters that the expert has no special skills, knowledge, or training.

To qualify a person as an expert, the evidence must meet the Mohan requirements: [22]

  1. the opinion must be relevant;
  2. the opinion must be necessary to assist the trier-of-fact to draw the correct inference;
  3. the absence of any other exclusionary rule;
  4. the required qualifications of the proposed expert.

The relevance requirement includes both logical relevance (the relationship between the evidence and the fact in issue it is being used to establish) and legal relevance (the probative value). (R. v. K.(A.), 1999 137 CCC 3d 225 (ONCA))

The necessity requirement is not a strict standard. It is necessary where it furnishes scientific information that is likely to be outside the experience and knowledge of the trier of fact.(R. v. B.(R.H.), [1994] 2 SCR 656)

Qualified expert evidence can nonetheless be excluded if: (R. v. D.D. [2000] 2 SCR 275)

  1. the evidence would tend to usurp the duty of the trier of fact
  2. the prejudicial effect outweighs the probative value
  3. the time required outweighs its probative value
  4. the cost required outweighs the probative value
  5. the influence of the evidence outweighs the evidence's reliability.

The proposed expert must have some indicia of scientific knowledge. It cannot be admitted if the witness is giving personal opinions based on their experience, knowledge from "some" literature, and interviews. (R. v. Bedford (2000), 143 CCC 3d 311)

[edit] Novel Sciences

Novel sciences must be considered on a case-by-case basis. The courts must individually distinguish between new sciences and "junk" sciences. As such, needs "special scrutiny". (R. v. J.(-L.), 2000 SCC 51 [22])

Novel sciences must only be qualified if it is

  1. necessary and
  2. reliable (R. v. Terceira (1998) 123 CCC 3d 1 (ONCA)[23])

The evidence can still be admissible even if the scientific theory is open to debate or that there are exceptional cases to the theory. (R. v. M.(B.) 1998 130 CCC 353 (ONCA)[24])

[edit] Examples of Qualification

Experts have been qualified in several issues related to drugs:

  • relationship between couriers, overseers and contact persons in drug importation (R. v. Hui 1988, OntCA)
  • how drug traffickers work (R. v. Joyal (1990) Que CA)
  • drug trafficking transactions (R. v. Ballony-Reeder, 2001 BCCA 293 [25])
  • intention to traffick (R. v. Bryan, 2003 CanLII 24337 (ON C.A.) [26])
  • pricing and jargon (R. v. Fougere, 1988 NBCA)
  • monetary value of hash and heroin (R. v. Mohammadi, 2006 QCCA 930)

Experts have been qualified in several issues related to gangs:

  • workings of a motorcycle gangs (R. v. Duguay, 2009 QCCA 1130)
  • meaning of tear-drop tattoo in street gang (R. v. Abbey, 2009 ONCA 624)

Experts have been qualified in several issues related to psychology and psychiatry:

  • effect of battered wife syndrome (R v. Berardo, 2000 Ont CA)
  • memory process in delayed recall (R. v. O'Dell, 2001 CanLII 8624 (ON C.A.) [27]; R. v. Tayebi, 2000 BCSC 819 [28])
  • inconsistencies and recantations of sexual abuse victims (R. v. Talbot, 2002 CanLII 23584 (ON C.A.) [29])

Experts have been qualified in several issues related to investigation methods:

  • handling tracker dogs (R. v. Holmes, 2002 OntCA; R. v. Rackley, 1996 Ont; R. v. Klymchuk, 2000 Ont; R. v. Nguyen, 1999 BCCA)

Similar issues have been disqualified:

  • Footprint analysis (R. v. Dimitrov, 2003 CanLII 50104 (ON C.A.) [30]; See also R. v. T. [2010] EWCA Crim 2439[31] for consideration on utility of analysis)

[edit] Evidence

Once the witness is qualified as an expert they are permitted to give evidence in the area for which they were qualified. The opinion evidence will be related by way of hypothetical questions put to the expert.[23] However, the testimony cannot be "oath-helping" evidence.[24]

The hypotheticals can be put to the expert where the facts are not dispute.[25] If the underlying facts are in dispute the opinion cannot remove the fact-finding function of the trier-of-fact.[26] The cross examiner can put to the expert any proven or provable facts to determine whether it alters the confidence of a the opinion.[27]

The expert must cite the bases on his opinion in order for the trier-of-fact to evaluate the opinion. [28] The expert can use sources and information found in the "scope of his or her expertise"[29] as well as sources outside his knowledge in limited contexts.[30] The "second hand" evidence of texts is not admissible as evidence, but can be used to show the information on which the opinion is based.[31]

An expert may be cross-examined on a text, report or article relating to his area of expertise. [32] The expert can only comment on works they are familiar with. If the expert acknowledges the authority, the examiner may read parts of the document to the witness to the extent that it is accepted as valid.

A judge may reject the uncontradicted expert evidence as unreasonable. [33] The evidence should not be rejected if there is no contradictory evidence and the opinion is not seriously challenged.[34]

[edit] Procedure

A party may call a witness as an expert under [s. 657.3 (1)|http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec657.3]. A party intending to call the expert witness must give notice at least 30 days prior to the commencement of trial or within the time set by the judge. [35]

[edit] References

  1. ↑ R. v. Graat, [1982] 2 SCR 819 [1]; R. v. Collins (2001), 160 CCC 85 (Ont. CA) [2]
  2. ↑ Graat, supra; CEA s. 8; R. v. Pitre, [1933] SCR 69; R. v. Abdi, (1997) 116 CCC 385 (ONCA)
  3. ↑ Graat, supra
  4. ↑ Graat, supra
  5. ↑ Graat, supra
  6. ↑ Graat, supra
  7. ↑ Graat, supra
  8. ↑ Graat, supra
  9. ↑ R. v. Leaney, [1989] 2 SCR 393; R. v. Nikolovski, [1996] 3 SCR 1197
  10. ↑ R. v. Ricards [1964] 2 CCC 19 (BCCA)
  11. ↑ R. v. Izzard (1990) 54 CCC 3d 252 (ONCA)
  12. ↑ R. v. Assoun (2006), 208 CCC 372
  13. ↑ R. v. Williams (1995), 98 CCC 160 (Ont.CA)
  14. ↑ R. v. Grabowski (1983) 8 CCCC 3d 78 (QCCA); R. v. Murray (1916) 27 CCC 247 (ABCA)
  15. ↑ R. v. Hill (1986), 32 CCC (Ont. CA)
  16. ↑ R. v. J-L J, [2000] 2 SCR 600 at para 56 [3];
    R. v. Abbey, [1982] 2 SCR 24
  17. ↑ R. v. Terceira (1998) 123 CCC 1 (Ont. CA)
  18. ↑ R. v. Mohan, [1994] SCR 9 [4];
    R. v. C.G. (1996) Nfld. CA;
    R. v. Lovie (1995) Ont. CA
  19. ↑ R. v. Parrott, [2001] 1 SCR 178 [5]
    R. v. Lavallee, [1990] 1 SCR 852
  20. ↑ R. v. Preeper and Doyle (1888) SCR
  21. ↑ R. v. Abbey, 2009 ONCA 624 [6]
    R. v. K. A., 1999 CanLII 3793 (ON C.A.) [7]
  22. ↑ R. v. Mohan, supra
  23. ↑ R. v. Fiqia (1994) 162 A.R. 117 (C.A.)
  24. ↑ R. v. Reid, 2003 CanLII 14779 (ON C.A.) [8]
  25. ↑ R. v. Bleta, [1964] SCR 561 [9]
  26. ↑ R. v. P.G., 2009 ONCA 32 [10]
  27. ↑ R. v. Kerr, 2000 BCCA 209 [11]
  28. ↑ R. v. Neil, [1957] S.C.R. 685 [12]
    R. v. Grandinetti, 2003 ABCA 307 [13]
    R. v. Trudel, 1994 CanLII 5397 (QC CA) [14]
  29. ↑ R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678 at 63 [15]
  30. ↑ R. v. Anderson (1914), 22 C.C.C. 455
    R. v. Godfrey, [1974] 4 W.W.R. 677, 18 C.C.C. (2d) 90 (Alta. C.A.), at pp. 102-104
  31. ↑ R. v. Burns, [1994] 1 S.C.R. 656 [16]
  32. ↑ R. c. Taillefer, 1995 CanLII 4592 (QC C.A.) [17]
    R. v. Marquard [1993] 3 SCR 223 [18]
    R. v. Conroy, (1993), Ont.C.A.
  33. ↑ R. v. Prince, (1971) OntCA
    R. v. Lambkin, 2002 MBCA 157 [19]
  34. ↑ R. v. Molodowic, 2000 SCC 16, [2000] 1 S.C.R. 420 [20]
  35. ↑ s. 657.3(3)(a);
    R. v. Salter, 2005 NSCA 129 [21]

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