2. Lay Witnesses

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 183-185

Page 183

Lay witnesses may present their relevant observations in the form of opinions where

· they are in a better position than the trier of fact to form the conclusion;

· the conclusion is one that persons of ordinary experience are able to make;

· the witness, although not expert, has the experiential capacity to make the conclusion; and

· the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions.

Even for lay witnesses, the general exclusionary rule disallowing opinion evidence is often not applied. This is because the stark dichotomy between fact and opinion that is presupposed by the general rule is unrealistic. As Dickson J. said in Graat v. R.: "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."⁶For example, when a witness identifies the driver of the vehicle by pointing her out in court, he is stating as a fact that she is the driver. Yet, in a real sense he is offering his opinion that the person in court is the same person who was driving the vehicle. Numerous apparent statements of fact are arguably no more than expressions of opinion; things like age, height, weight, the identification of people or things, the speed of vehicles, distance, whether someone is happy or angry, all call for judgment to be made about what has been observed and for conclusions to be drawn. Obviously, it is common for witnesses to testify about such things. The fact is that lay witnesses do offer opinions.

We once proceeded on the basis that there was a general exclusionary rule prohibiting lay witnesses from testifying about their opinions, to which there were numerous particular exceptions allowing for proof of the kinds of things that have just been described. In Graat⁷the Supreme Court of Canada adopted a more general, sensible, and less technical approach. Graat was charged with impaired driving, and the trial judge had permitted a series of witnesses to offer opinion evidence about whether the ability of Graat to drive a motor vehicle was im-

Page 184

paired. Dickson J. held that it was appropriate to allow such testimony, but not because the degree of impairment of an individual is one of those established, exceptional cases where laypersons can offer their...