R. v. Ilina, 2003 MBCA 20
72 Any analysis of lay opinion evidence must begin with the leading decision of Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, where Dickson J. pointed out (at p. 835):
Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear.
73 In Graat, the issue was the admissibility of a police officer’s opinion as to a driver’s impairment. Dickson J. noted a number of factors that militated in favour of the admissibility of such evidence (at p. 836):
There is a direct and logical relevance between (i) the evidence offered here, namely, the opinion of a police officer (based on perceived facts as to the manner of driving, and indicia of intoxication of the driver) that the person’s ability to drive was impaired by alcohol, and (ii) the ultimate probandum in the case. The probative value of the evidence is not outweighed by such policy considerations as danger of confusing the issues or misleading the jury. It does not unfairly surprise a party who had not had reasonable ground to anticipate that such evidence will be offered, and the adducing of the evidence does not necessitate undue consumption of time.
74 The subjects upon which non-expert witnesses are allowed to give opinion evidence are not closed. See Graat at p. 835.
75 Numerous appellate decisions since Graat have amplified on the principle that an opinion based on observed facts does not necessarily make such evidence by a non-expert witness inadmissible. See Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), and R. v. Ross (1985), 1985 CanLII 5868 (NS CA), 66 N.S.R. (2d) 287 (S.C.,A.D.).
76 Other appellate courts have articulated a less stringent application of the test for the admission of non-expert opinion than did Collins. In R. v. Bell (2001), 152 C.C.C. (3d) 534, 2001 BCCA 99, the evidence in question involved an opinion expressed by an automobile inspector. In confirming that the evidence was admissible, Mackenzie J.A. commented (at para. 10):
In my view, any opinions expressed by the inspector were merely incidental to his observations and admissible as no more than “merely a compendious way of ascertaining the result of the witness’ observations”, in the words of R. v. Graat ….
77 In E. G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed. (Toronto: Canada Law Book, 2002), the author puts the matter this way (at c. 16, pp. 246-47):
A “conclusory” opinion may be given by a lay or non-expert witness, as an exception to the general rule, when the opinion constitutes a “compendious statement” of the facts the witness observed if the facts involve matters of common experience and it is difficult to transmit the basis of the opinion.
78 The Crown’s factum lists six reasons why the “observations/opinions” of the officers should have been admitted:
1. the experience of the witness;
2. their opportunity to observe;
3. the difficulty of conveying the actual observations to the jury without putting the description in terms that the jury would understand, i.e. an opinion;
4. the clear relevance of the opinion;
5. the opportunity for full cross-examination including permission from the court for Appellant’s counsel to illicit the opinion of Maclean that the opinion of Bell and Rautauvori [sic] was speculation even though he was not at the scene when they were;
6. the matter under consideration does not call for a specialist, i.e. whether or not there had been a cleaning is something that is familiar to most of us but not necessarily readily apparent from photographs.
I agree with this analysis.
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