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Evidence - Lay Opinion (3). 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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