Le témoin de fait spécialisé

R. v. Hamilton, 2011 ONCA 399 

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[273]      The Crown did not ask for a voir dire, the defence did not seek one, and the trial judge did not hold one.  Now on appeal, Schloss, Davis and Reid argue that Mr. Rickard, Mr. Iaccio and Ms. Hopper gave opinion evidence, and if a proper voir dire were held, they would not have met the criteria for the admissibility of expert opinion evidence set out by Sopinka J. in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, and more recently by Doherty J.A. of this court in R. v. Abbey, 2009 ONCA 624. In particular, they contend that in testifying about the general rule and its exceptions, the employees were giving a technical, scientific opinion that they were not qualified to give.  In short, they could not satisfy the second Mohan criterion: the witness must be qualified to give the opinion. 

[274]      Whether testimony about the general rule and its exceptions is factual evidence, as the Crown maintains, or opinion evidence, has been a matter of debate.  Case law on the question has gone both ways.  The two sides of the debate are reflected in the Manitoba decision of R. v. Korski, [2007] M.J. No. 275 (Q.B.), affirmed 2009 MBCA 37, and the Ontario cases of  Zwezdaryk, R. v. McFarlane, [2006] O.J. No. 4858 (S.C.J.) and R. v. Spackman, [2009] O.J. No. 1066 (S.C.J.).

[275]      In Korski, Beard J. concluded at paras. 11-12 that “evidence regarding the operation of the cellular telephone network and explaining the billing record information” was factual evidence. Her conclusion was upheld on appeal. In Zwezdaryk, on the other hand, Clark J., in thorough reasons, held that evidence about the operation of the cellular telephone system was opinion evidence, but admissible through the testimony of Mr. Wang. In the later case of McFarlane, Clark J. refused to qualify Mr. Rickard as an expert in the field of cellular telephone communications, in part because he was not an engineer. In Spackman, Trafford J. refused to qualify a Rogers Wireless employee as an expert on the location of cell phones in relation to cell towers, in part because the employee was not an engineer, and in part because the cell tower configuration data for Fido phone towers, which were the pertinent towers in that case, was no longer available and so the employee’s evidence could not be challenged effectively by the defence.

[276]      We accept that if the cell phone location evidence given by Mr. Rickard, Mr. Iaccio and Ms. Hopper was opinion evidence, then the trial judge ought to have conducted a voir dire.  And if it was opinion evidence, the trial judge likely overstepped the bounds by ruling that Mr. Rickard was an expert qualified to give cell phone location evidence.  But in fairness to the trial judge, as we have said, no counsel sought a voir dire or seriously objected to Mr. Rickard’s evidence. 

[277]      However, we are satisfied that the evidence given by the three employees of the carrier companies was factual evidence, not opinion evidence.  Each of them, by reason of their knowledge, observation and experience in dealing with cell phones for their respective companies could give the testimony they provided without being qualified as experts. They could testify about the times each appellant’s cell phone registered, the number calling and the number called, the duration of the call and the location of the towers at which the calls registered.  These were factual details on which the carriers based their billing practices.  Further, these employees had the knowledge and experience to testify about the general rule and its exceptions.  They did not have to understand the scientific and technical underpinnings of the rule or have an engineering degree to give this evidence. 

[278]      It is perhaps understandable why some courts in years past treated this kind of evidence as opinion evidence.  The introduction of cell phone evidence in criminal trials was in its infancy. Now, with the benefit of hindsight, we know that this evidence is routinely admitted: see, for example, R. v. Tomlinson, [2008] O.J. No. 817 (S.C.J.), R. v. H.B., [2009] O.J. No. 1088 (S.C.J.), R. v. Smith, [2009] O.J. No. 4544 (S.C.J.).

[279]      Even if evidence about the general rule and its exceptions could at one time have been considered opinion evidence, it is now simply factual evidence that witnesses with the knowledge and experience of Mr. Rickard, Mr. Iaccio and Ms. Hopper can testify about. They were not proffering a novel scientific or behavioral theory that was open to debate. They were testifying about uncontroversial facts related to the operation of cell phone networks. As the trial judge noted, their evidence was essentially the same as the evidence that could have been given by an engineer. Indeed, an engineer, Mr. Wang, gave largely the same evidence about the general rule at the preliminary inquiry. With the benefit of that testimony, no appellant insisted that an engineer give this evidence at trial. 

[280]      Importantly, none of the three cell phone witnesses was asked to give an opinion about the precise location of an appellant’s cell phone when a particular call was made or received. Evidence of that nature might well be opinion evidence and subject to the Mohan criteria: see R. v. Ranger, 2010 ONCA 759, at para. 17. Testimony about the general rule and its exceptions is not opinion evidence, and thus no voir dire was necessary. 

[281]       The Crown in closing submissions to the jury made it clear that the cell phone witnesses were not giving evidence of the precise location of a cell phone:

The evidence makes it clear, however, that there are significant limitations on the ability of records to precisely identify a phone’s location.  In substance, where the records indicate that a phone is registering on a particular cell tower, there is a probability but not a certainty that the phone is somewhere within the expected coverage area of the cell site. The general rule from all of – that we heard from Mike Rickard who represented Bell Mobility, Sal Iaccio who represented Telus Mobility, and Ms. Hopper who represented Rogers AT&T was that the phone registers on the tower with the strongest signal and that usually is the closest tower, but there are definite exceptions to that general rule, and in your experience and your common sense, general rules always have exceptions.

[282]      Additionally, the jury would have had no difficulty in understanding the cell phone location evidence, especially after it was summarized in a PowerPoint presentation.  That presentation undoubtedly clarified the evidence and put to rest any possibility the jury might have been confused by it.  The presentation of the cell phone evidence did take a fair amount of time, seven days.  But in the context of a four-month trial, this was not an overly long amount of time. 

[283]      Finally, the probative value of this evidence strongly favoured its admission.  In a case where identity was the key issue at trial, the cell phone evidence was highly probative circumstantial evidence of the general location of three of the appellants, Hamilton, Schloss and Davis, at the critical times.

La Res gestae vue par la Cour d'appel du Manitoba

R v Hall, 2018 MBCA 122

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Discussion and Conclusion

Standard of Review—Hearsay Rulings

[40]                     Hearsay decisions, if informed by the correct principles of law and reasonably supported by the evidence, are entitled to deference on appeal (see Reg v Andrews (Donald), [1987] 1 AC 281 at 302 (HL (Eng)); R v Blackman, 2008 SCC 37 at para 36; R v Youvarajah, 2013 SCC 41 at para 31; and R v Head, 2014 MBCA 59 at para 24, leave to appeal to SCC refused, 36036 (29 January, 2015)).

Spontaneous (or Excited) Utterance Exception to the Hearsay Rule

[41]                     A spontaneous (or excited) utterance is one of the categories of res gestae recognised to be a traditional exception to the hearsay rule (see Head at para 25; and S Casey Hill, David M Tanovich & Louis P Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto:  Thomson Reuters, 2013) (loose-leaf updated 2018, release 3), pt III, ch 7 at para 7:120.10 (online:  WLNext Can (date accessed 14 November 2018)).  A spontaneous utterance resulting from a startling event is admissible if the circumstances in which it was made exclude the possibility of concoction or distortion and there are no special features of the case that give rise to a real possibility of error (see Ratten v The Queen (1971), [1972] AC 378 at 388-91 (PC (Eng)); Andrews at pp 300-301; and Head at para 31).  The circumstances of the making of the statement provide the circumstantial guarantee of trustworthiness to alleviate any hearsay danger (see James H Chadbourn, ed, Wigmore on Evidence:  Evidence in Trials at Common Law (Boston:  Little, Brown and Company, 1976) vol 6 at para 1747; Sidney N Lederman, Alan W Bryant & Michelle K Fuerst, Sopinka, Lederman & Bryant:  The Law of Evidence in Canada, 5th ed (Toronto:  LexisNexis, 2018) at paras 6.364-6.365; R v Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531 at 540; R v Starr, 2000 SCC 40 at para 212; and R v Khelawon, 2006 SCC 57 at paras 62-64).

[42]                     Consideration of this traditional exception is not a mechanical process.  Rather, a functional analysis of the surrounding circumstances of the statement should be undertaken (see R v Dakin, 1995 CanLII 1106 (ON CA), 1995 CarswellOnt 4827 at para 20 (CA); and Head at para 31).

Arrêt de la Cour d'appel de l'Ontario sur le ouï-dire (Res gestae, exception raisonnée & déclarations antérieures compatibles)

R. v. Khan, 2017 ONCA 114 

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[14] The trial judge identified three possible routes of admissibility for the statement: (i) admission under the traditional hearsay exception of res gestae or spontaneous utterance; (ii) admission under the principled approach to hearsay; and (iii) admission as an exception to the rule against prior consistent statements. In my analysis of this issue, I will consider all three routes. I will then analyze the permissible use of the statement.

A. Admissibility under the res gestae exception

[15] Res gestae statements are admissible as an exception to the hearsay rule: R. v. Khan, 1988 CanLII 7106 (ON CA), [1988] O.J. No. 578, 42 C.C.C. (3d) 197 (C.A.), affd 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, at para. 21; R. v. Ratten, [1972] A.C. 378, [1971] 3 All E.R. 801 (P.C.), at pp. 389-91 A.C. Statements are admitted under this exception to the hearsay rule on the basis that the stress or pressure under which the statement is made can be said to safely discount the possibility of concoction: S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed. (Toronto: Canada Law Book, 2013), at p. 7:120.20.10. The statement should be reasonably contemporaneous with the alleged occurrence, although exact contemporaneity is not required: Khan, at para. 25; R. v. Dakin, 1995 CanLII 1106 (ON CA), [1995] O.J. No. 944, 80 O.A.C. 253 (C.A.), at para. 20.

B. Admissibility of the statement under the principled approach

[18] An excited utterance can also satisfy the principled approach to the hearsay rule. The two requirements for the admission of a hearsay statement under the principled approach are reliability and necessity: R. v. Youvarajah, [2013] 2 S.C.R. 720, [2013] S.C.J. No. 41, 2013 SCC 41, at para. 21. The reliability of the statement comes from the absence of an opportunity to concoct a story. As for necessity, where, as in this case, the witness testifies, the objection to hearsay statements arising from the absence of an opportunity to cross-examine is negated. More fundamentally, though, as pointed out by Justice Paciocco in "The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013), 17 Can. Crim. L. Rev. 181 (Paciocco), at pp. 192-93:

. . . [T]he "necessity" component [of the basic hearsay principles] performs a "best evidence" function. It exists to ensure that if it is possible to present "better evidence" in the form of in-court testimony, parties should not be permitted to resort to hearsay proof . . . There are times, however, when hearsay evidence is expressed under circumstances that yield tremendously helpful criteria for evaluating the reliability or credibility of a factual claim.

[21] As noted above, the necessity requirement under the principled approach does not require that the witness be absent or unable to give evidence. Rather, the necessity requirement can be satisfied where the witness is unable to give a full and frank account of the events, or where the witness has difficulty recalling significant details of the event: Khan; R. v. C. (M.), [2014] O.J. No. 3959, 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 56.

[24] Therefore, the statement is also not admissible for the truth of its contents under the principled approach to hearsay. What remains is whether the statement is admissible as an exception to the general rule against the admission of prior consistent statements.

C. Admissibility as an exception to the rule against prior consistent statements

[25] Prior consistent statements are presumptively inadmissible because they lack probative value: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at paras. 5-7. The fact that someone said the same thing on a prior occasion to what he/she has said in court is, generally speaking, not probative of whether the witness is offering truthful testimony in court. It would be self-serving to allow a witness to buttress his or her own testimony with her own prior statements.

[26] As Watt J.A. noted in C. (M.), at para. 59, citing Paciocco, at p. 184, prior consistent statements are an amalgam of two elements -- the hearsay element and the declaration element. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration [page528] element. Where admissible, the declaration element is proof that a statement was made, and allows a trier of fact to derive appropriate inferences from the fact and context in which the statement was made: Paciocco, at p. 184.

[27] The common law recognizes a number of exceptions to the basic rule that prior consistent statements are inadmissible. When a prior consistent statement is admissible pursuant to one of these exceptions, it is admissible for limited purposes, and those purposes differ among exceptions.

[28] For example, where a prior consistent statement is admitted to rebut an allegation of recent fabrication, it is admitted solely to provide a direct response to the suggestion that the witness concocted allegations after a triggering event. The statement is not admitted for the truth of its contents, but only to show that the details were not added after the point in time suggested by opposing counsel.

[29] Other recognized exceptions include admitting prior consistent statements as pure narrative evidence, and narrative as circumstantial evidence: Paciocco, at p. 182.

[30] As pure narrative, prior consistent statements carry no weight because they are tendered simply to give the background to explain how the complaint came to be before the court. This court described the pure narrative exception in R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), as allowing the decision maker to understand the "chronological cohesion" of the case. The statement is not used to prove the truth of its contents, nor are there any inferences arising that would make the case of one person more compelling than that of another. It is merely an aid in understanding the case as a whole.

[31] But sometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a more substantive use: R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 39; R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, at para. 32. This is referred to as narrative as circumstantial evidence.

[32] In R. v. C. (G.), 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245, 2006 CarswellOnt 3413 (C.A.), at para. 22, Rouleau J.A. identified the limited way in which prior consistent statements can be used to assist the trier of fact in assessing the cogency, and therefore the reliability and credibility, of a witness:

In cases involving sexual assault of young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate [page529] cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child's evidence, be a useful tool in assisting the trial judge in the assessment of the child's truthfulness.

[33] While Rouleau J.A. was discussing the use of prior consistent statements to assess the reliability and credibility of young children, there is no reason why the principle should be so restricted. In the appropriate case, prior consistent statements can be useful tools in assisting a trial judge in the assessment of the truthfulness or reliability of the declarant, whatever their age: C. (M.), at para. 66; R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, at para. 37.

[34] As this court noted in Curto, at para. 34, it will not always be necessary to know why or how the case came to the attention of the police; however, the fact that a statement was made, and the context in which the statement is made, can be probative and help in assessing a witness' credibility.

[35] The line between the permissible and impermissible uses of prior consistent statements is a fine one, as noted by the Supreme Court of Canada. In Dinardo, the prior consistent statements of an intellectually disabled complainant were, at trial, used to corroborate her in-court testimony. The Quebec Court of Appeal held that the trial judge erred in using the complainant's prior consistent statements to corroborate her evidence that the crime had been committed. The Supreme Court of Canada agreed and highlighted the distinction between the permissible and impermissible use of prior consistent statements. Charron J. stated, at para. 37:

In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed. The challenge is to distinguish between "using narrative evidence for the impermissible purpose of aeconfirm[ing] the truthfulness of the sworn allegation'" and "using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of the truthfulness or credibility".

(Emphasis added; citations omitted)

[36] Charron J. cited this court's decision in C. (G.), in which Rouleau J.A. stated, at para. 20:

. . . the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can "be supportive of the central allegation in the sense of creating a logical framework for its presentation . . . and can be used in assessing the truthfulness of the complainant. [page530]

[37] In this case, while the trial judge did not expressly refer to the narrative as circumstantial evidence exception, it is clear from his reasons that it was through this lens that he considered the admissibility of the complainant's statement. The trial judge stated [see 2015 ONSC 7187 (CanLII), [2015] O.J. No. 6200, at para. 13]:

Having touched on the issue of an allegation of fabrication by the defence, I would also admit the statement as a prior statement of [the complainant] as relevant and capable of assisting the trier of fact in determining a fact in issue and the credibility of [the complainant], it having been put squarely in issue that she fabricated her evidence.

Such admission has the capacity to impact positively, where admission of the statement directly addresses the allegation of fabrication, as but one factor to be taken into account as part of the larger assessment of credibility.

[40] It is the "declaration part" of the prior consistent statement that is relevant and leads to permissible circumstantial inferences. Given the circumstances in which the complainant made her statement in this case, the trial judge did not err in admitting the statement under the narrative as circumstantial evidence exception to the prior consistent statement rule.

Le droit sur l'admissibilité d'une preuve par expérimentation / L'opinion désigne une « inférence tirée d'un fait observé »

R. v. Collins, 2001 CanLII 24124 (ON CA)

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[16]         Despite the fact that experiment evidence is often, and at times routinely, admitted at trials, there is a paucity of Canadian jurisprudence relating to this kind of evidence. Perhaps this is explained by the fact that experiment evidence often goes unrecognized for what it is: in some cases, it consists of mere factual evidence, much like any other sworn testimony; in other cases, it is a combination of factual and opinion evidence. In either situation, its admissibility is governed by well-established rules of evidence.  Indeed, in my view, the key to determining the admissibility of experiment evidence is to keep in mind this distinction between fact and opinion as it is understood in the law of evidence. I will briefly review the applicable principles of law.

[17]         In the law of evidence, an opinion means an “inference from observed fact”: see R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394 at 409. As stated in Abbey, as 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. See R. v. Graat (1982), 1982 CanLII 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.) for a review of the law on non-expert opinion. 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, that is “a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate” (Abbey at 409). The law as to expert opinion evidence was authoritatively restated in Mohan, supra. Before expert opinion evidence can be admitted, the evidence: (a) must be relevant to an issue in the case; (b) it must be necessary to assist the trier of fact; (c) it must not be subject to any other exclusionary rule; and (d) it must be given by a properly qualified expert.  

[18]         A witness’ testimony as to observed facts is, of course, subject to the general principles governing the admissibility of any evidence: relevance and materiality. Relevance is established at law if, as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced. The evidence is material if it is directed at a matter in issue in the case. [1] Hence, evidence that is relevant to an issue in the case will generally be admitted. Indeed, it is a fundamental principle of our law of evidence that any information that has any tendency to prove a fact in issue should be admitted in evidence unless its exclusion is justified on some other grounds: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at 715; Morris v. R., 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190 at 201; and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at 609.

[19]         The grounds that justify the exclusion of evidence that is otherwise relevant and material form the basis of many of our more specific rules of evidence. The rule against hearsay, the opinion rule and the similar fact rule are a few examples. Quite apart from these specific rules, evidence that is otherwise relevant and material may also be excluded by the exercise of the trial judge’s general power to safeguard the fairness of the proceedings. Our law of evidence recognizes the general power of a judge to exclude relevant and material evidence where its probative value is outweighed by the prejudice caused by its admission, provided that where the evidence is tendered by the defence, it should not be excluded on that basis unless the prejudice substantially outweighs the value of the evidence: see Seaboyer, supra, at 390; and R. v. S.C.B. (1997), 1997 CanLII 6319 (ON CA), 119 C.C.C. (3d) 530 at 541 (Ont. C.A.). Prejudice in this context does not mean, of course, that the evidence will be detrimental to the other party’s position. Rather, it is related to the detrimental effect that the evidence may have on the fairness and the integrity of the proceedings. For example, the evidence may not be worth receiving if its reliability is clearly outweighed by its potential to mislead or confuse the trier of fact. The evidence could also be excluded where its admission would involve an inordinate amount of time that is not commensurate with its value. See Mohan, supra, at 411.

[20]         These general principles apply to experiment evidence. A pre-trial experiment can be as simple as driving from one location to another to determine the time it takes to cover the distance in order to substantiate or disprove an alibi, or driving along a particular stretch of road to determine at what point a stop sign becomes visible. The evidence in such cases, provided that it is relevant to an issue in the case, will usually be admitted without argument. It is entirely factual, and its admissibility is only subject to the general principles of relevance, materiality and discretion as discussed earlier. In other cases, the pre-trial experiment may be more complex, requiring particular technical or scientific knowledge to perform, and it may also form the basis of expert opinion evidence in the interpretation of the results. In such cases, the experiment evidence, in so far as the observed facts are concerned, will be subject to the usual principles of relevance, materiality and discretion but, in addition, to the extent that it includes inferences from observed facts, the opinion rule will come into play. In order to be admissible, that part of the experiment evidence that constitutes opinion evidence will have to meet the criteria in Mohan.

[21]         In a nutshell, experiment evidence, if it is relevant to an issue in the case, should generally be admitted, subject to the trial judge’s residuary discretion to exclude the evidence where the prejudice that would flow from its admission clearly outweighs its value. Beyond this, when the evidence requires the making of inferences from observed facts that require special knowledge, the test in Mohan will have to be met before the evidence can be admitted as expert opinion evidence.

[22]         In most cases, the relevance of the experiment evidence will depend on the degree of similarity between the replication and the original event. Consider the example given earlier where the experiment consists of the driving along a particular stretch of road to determine at what point a stop sign becomes visible. If the distance at which the stop sign becomes visible is in issue at trial, the experiment evidence will be material, but will only be relevant if the replication bears some similarity to the original event. For example, if the original event occurred in the summer when vegetation partly obstructed the driver’s view but the experiment was conducted in winter after all the leaves had fallen, the relevance of the evidence will be greatly diminished. Depending on all the circumstances, it may not be worth receiving. Similarly, if the experiment evidence includes expert opinion evidence, variances between the replication and the original event, depending on their degree and importance, will affect the weight that can be given to the expert opinion evidence.

[23]         As indicated earlier, there is a paucity of Canadian jurisprudence dealing specifically with experiment evidence. The admissibility of this kind of evidence, however, has been discussed in some cases, and the issue has generally been disposed of without much analysis but in a manner consonant with the principles that I have set out. I will briefly review some of the more relevant cases.

[24]         In Kirkpatrick et al. v. Lament (1965), 1965 CanLII 631 (SCC), 51 D.L.R. (2d) 699 (S.C.C.), the plaintiff brought an action against defendant police officers for damages in respect of brain injuries that he suffered as a result of extensive force used by the officers in making an arrest.  In support of his case, the plaintiff called a witness who testified as to hearing a ‘thud’ from over 100 feet away during the timeframe of the arrest. To contradict this witness, the defendants introduced evidence of an audibility experiment in which a hammer was pounded on the police station floor.  The plaintiff objected to this evidence. On appeal to the Supreme Court of Canada, the Court held that the evidence was irrelevant to the issues at trial, but made the following brief comment about experiments in general at p. 709:

There is much, of course, to be said against that kind of evidence.  It is absolutely impossible to duplicate all the elements affecting audibility on the night in question.  But it would seem that that objection goes more to the weight of the evidence than to the admissibility….

[25]         In  R. v. Laverty (No. 2) (1979), 1979 CanLII 3010 (ON CA), 47 C.C.C. (2d) 60 (Ont. C.A.), the accused was convicted of arson.  At trial, the Crown had relied on the evidence of a fire marshal who theorized that the fire had been started by the partial filling of a bathtub with flammable fluid and then igniting it. To test this theory, he had conducted a simulation in another bathtub, and then examined the blisters. He gave evidence of this simulation and its results before the jury. On appeal, the accused argued that such evidence should not have been admitted. In rejecting this ground of appeal, Zuber J.A. (at 62) relied on the following excerpt from McCormick’s Handbook of the Law of Evidence, 2^nd ed. (1972), c. 20 at pp. 484-485:

Testing the truth of hypotheses by the use of controlled experiments is one of the key techniques of modern scientific method.  The courts in their task of investigating facts make extensive use of this technique, but under conditions which prevent them from exploiting the process to the full limits of its usefulness.  The legal doctrines relating to experimental evidence are simple and the principal task of the lawyer is to recognize the opportunities for their use, to seize these opportunities boldly, and when experiments are employed to plan them inventively and correctly, so that the results derived will be convincing to judge and jury.  We are dealing here with experiments carried out before trial and presented at the trial through descriptions given by witnesses of the experiment and its results…

The opportunities are of limitless variety.  Some of the types of experiments most frequently encountered are these: tests of the composition and properties of substances; testing firearms to show the patterns of powder and shot made upon the object at different distances; experiments by human beings in the holding of firearms to determine whether a given gunshot wound could have been self-inflicted; tests of the visibility of objects or persons at a given distance; tests of audibility and tests of the speed of locomotives and motor vehicles and of the effectiveness of their brakes and headlights.

[26]         Zuber J.A. concluded that the test performed in the case under appeal was “well within the class of cases referred to in McCormick and well within the class of tests which have been customarily admitted in [Ontario courts]”. 

[27]         In R. v. Kelly, [1985] O.J. No. 237 (C.A.), the accused was convicted of first degree murder. At trial, the Crown relied on experiment evidence to contradict the appellant’s allegation that his wife had fallen from the balcony.  On appeal, the accused argued that the experiment evidence was inadmissible, due to “incomplete information and inaccurate assumptions”.  In rejecting this argument, MacKinnon A.C.J.O. stated at p. 2 (QL):

…the information used was substantially that given by the appellant and the tests were conducted in accordance with scientific methodology.  There was no need for a deep knowledge of the laws of physics to question the statements of the accused that he saw his wife falling as he was running from the kitchen and still had time to cross the living-dining room and the balcony and catch her, only to have her slip from his grasp.  However, it was within the jury’s province to weigh the evidence of the tests conducted and introduced by the Crown; the argument that the tests were based on incomplete information goes to its weight and not its admissibility.

[28]         In R. v. Brooks (1998), 1998 CanLII 5686 (ON CA), 129 C.C.C. (3d) 227 (Ont. C.A.), an issue arose as to the cause of a red mark on a young victim of a homicide. It was the Crown’s theory at trial that the red mark was caused by a cigarette burn inflicted by the accused. It was the defence theory that the mark was caused when the victim fell on a red toy funnel in the bathtub. To disprove the accused’s allegation, the investigating officer performed a “crude experiment” with a funnel in his bathtub to determine how it would land in the water.  At trial, the officer testified about the results of this experiment without objection. However, the admissibility of his evidence was contested on appeal. Laskin J.A., in writing for the court, stated as follows:

I agree that the results of Detective Sergeant Harild’s experiment should not have been admitted.  He did not have the required scientific training to give this evidence and the evidence itself was of dubious relevance.  See R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.). But the error was harmless for two reasons. First, the trial judge instructed the jury to ignore the evidence. … Second, the medical evidence at trial showed that the mark was likely caused by a cigarette burn. Indeed the medical evidence dismissed the possibility of a funnel having caused or aggravated the lesion. I would not give effect to this ground of appeal.

[29]         A review of the transcript in Brooks reveals that the police officer’s testimony went beyond relating observed facts and included opinion evidence that would be subject to the criteria in Mohan as stated by the court. The police officer testified as follows:

 What I did was, in light of the evidence where the injury had supposedly been sustained, seeing that this was the aggravating factor that could have caused the injury, what I did was I filled my tub up with different levels of water.  When there was two inches of water in the tub, I would just randomly throw this toy in, flipping it and also that there was no, no consistency in the way it was introduced into the water, and out of the 25 times that I threw it, 24 times it landed like this with the funnel up, because basically this part of the funnel is so heavy that it’s sitting on the water and physics dictates that the heaviest then will end up on the bottom. [Emphasis added.]

[30]         In R. v. Gillese (1993), 1993 CanLII 898 (BC CA), 27 B.C.A.C. 69 (C.A.), the appellant successfully adduced  experiment evidence by way of fresh evidence on his appeal from his second degree murder conviction. The appellant maintained at trial that he had shot away from the victim not intending to kill him. The fresh evidence consisted of an experiment conducted by a retired R.C.M.P officer, in which the circumstances of the shooting were simulated.  The Crown argued that the evidence was not of sufficient probative value, because it amounted to a speculative experiment with no scientific evidence. The British Columbia Court of Appeal rejected this argument, admitted the evidence and ordered a new trial stating, at 73:

In the result, I am satisfied that the appellant has met each of the tests required by [R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1S.C.R. 759].  As I have already indicated, the fresh evidence is capable of raising a reasonable doubt whether [the appellant] shot directly at [the victim] and a reasonable doubt whether the facts themselves prove that he did.  If accepted, and I do not think we can make that determination, the consequence would be a verdict of manslaughter, not second degree murder. 

[31]         In Toronto Helicopters Ltd. v. Intercity Ford Ltd. (1995), 18 M.V.R. (3d) 203 (Ont. Gen. Div.), a case arising out of a collision between the defendant’s tractor and the plaintiff’s helicopter, the plaintiff proposed to call evidence about stopping distances achieved in conditions that replicated the accident. The defendant objected to this experiment evidence on the ground that it constituted expert opinion evidence, and that proper notice had not been given pursuant to Rule 53.03 of the Ontario Rules of Civil Procedure. On a motion to exclude the evidence, the motions judge ruled that the evidence was admissible. Relying on various American texts, the motions judge held that the evidence was neither scientific evidence nor expert opinion evidence.  Rather, it was plain, factual testimony.

[32]         In R. v. Subhani, [1998] O.J. No. 1623 (Gen. Div.), the accused appealed from his conviction of the dangerous operation of a motor vehicle involving a high-speed night chase.  At trial, the only live issue was the identity of the driver. To rebut the eyewitness identification evidence, the defence sought to adduce expert opinion evidence, based on a series of experiments at a traffic intersection, that it would have been impossible for the eye witnesses to make out the facial features of the driver on the night in question.  The trial judge concluded that the expert’s testimony was of limited value due to a failure to precisely replicate the circumstances of the original night. On appeal, the appellant argued that the expert opinion was improperly rejected. Hill J., sitting as a summary conviction appeal court judge, disagreed, finding that the expert’s opinion was properly rejected because the subject-matter of his testimony was outside his area of expertise. Hill J. also made the following useful comment with respect to the assessment of this kind of evidence (at paras. 62-63):

 Where an expert witness purports to express opinion evidence founded on an experiment or recreation of events, the opinion will have probative value, more or less, depending on the integrity of the purported replication.  As in the instance of a hypothetical question posed to an expert witness, variances from the established facts of the original event(s), may, depending on materiality and degree of departure, substantially diminish the weight which can reasonably be afforded the expert’s evidence.  In an extreme case, admissibility itself may be jeopardized.

While no experiment or recreation can, as a general rule, exactly duplicate history, a lack of faithfulness to relevant and proven facts justifies caution by the trier-of-fact.  

[33]         R. v. Meads, [1996] Crim. L.R. 519 (C.A.) is one example of an English case where the distinction between factual testimony and expert opinion testimony is clearly made. Indeed, the ruling of the Court of Appeal in Meads is similar to the ruling made by the trial judge in this case. In Meads, the appellant was convicted of offences arising out of an armed robbery.  The principal evidence against him consisted of admissions and confessions allegedly made by him to the police during interviews.  On appeal, the appellant sought to adduce fresh evidence by forensic experts to show that the handwritten notes of the disputed interviews could not have been made in the time claimed by the interviewing officers. The prosecution argued against the admission of this evidence on the basis that the witness had insufficient experience to perform the tests.  In admitting the fresh evidence, the Court of Appeal was reported to have ruled as follows (at 520):

…the evidence was admissible provided that it was confined to tests performed by the two experts and the results of those tests.  It was not opinion evidence any more than the evidence of a police officer who gave evidence of timing a given journey in order to test an alibi.  The inference from such evidence – certain interviews having been apparently read back almost at the speed of a horse racing commentary – could be properly drawn by a jury.