R. v. Collins, 2001 CanLII 24124 (ON CA)
[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, 2nd 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.
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