Opinion and Expert Evidence

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 233-286

233

CHAPTER 5

OPINION AND

EXPERT EVIDENCE

1. OPINION AND FACT

1.1) Important Distinctions Introduced

This chapter is about opinion and expert ev idence. Two disti nctions are

important to this body of law: (1) the difference between fact and opin-

ion; and (2) the difference between specialized and ordinary know-

ledge. The first distinction matters because mere observations of fact

are generally admissible, whereas opinion evidence is presumptively

inadmiss ible. The second di stinction matters because only expert s may

give opinions that require specialized knowledge; ordinary witnesses

may not. In most cases, the t wo key distinctions can be made easi ly, but

there are many instances that require the exercise of careful judgment.

1.2) The Difference Between Fact and Opinion and the

General Exclusionary Rule

“In the law of evidence, an opinion means an ‘inference from observed

fact.’”1 An inference from observed fact is different than the observed

fact itself. A witness who says a wound was life-threatening, for

example, is drawi ng an inference from an observed fact and is therefore

offering an opinion. If that same witness merely describes the wound

1 R v Collins (2001), 160 CCC (3d) 85 (Ont CA) at para 17 [ Collins].

THE LAW OF EVIDENCE234

by saying either “the victim had a wound in his neck” or “the carotid

artery was severed,” that witness is simply reporting an observed fact.

This distinction between inferences and facts is import ant to the law of

evidence, to the extent that it can be drawn. In our system of trial, it is

the neutral, impartial trier of fact who is to determine what inferences

or conclusions to draw from facts. The role of the witness is ordinarily

to describe observed facts that the impartial trier of fact will then use

to draw their own inferences or conclusions. “A basic tenet of our law

is [therefore] that the usual witness may not give opinion evidence,

but testify only to facts within his knowledge, observation and experi-

ence.”2 In other words, there is a general exclusionary rule that oper-

ates to make opinion evidence presumptively inadmissible.

1.3) The Difference Between Specialized and Ordinary

Knowledge and Its Implications

There are two exceptions to the general exclusionary rule for opinion

evidence, one for lay witnesses and one for expert witnesses. Both

exceptions are based on the need, in the circumstances, to resort to

opinion evidence in order to gain access to relevant information.

As will be ex plained,3 lay witnesses are permitted to offer opinions

or conclusions where there is no other meaningful way for them to

communicate ordinary knowledge they possess. A lay witness could

express an opinion, for example, that the assailant struck quickly. Per-

mitting such a statement allows for more effective communication th an

does confining the witness to a mechanistic description of the move-

ments of the assailant. Similarly, a lay witness could testify that “the

victim had a deep wound to his neck,” even though the depth of a

wound is a matter of judgment, or arguably “opinion.” There would

be no other meaningful and straightforward way for the witness to

describe the wound they obser ved, and this is the kind of judgment lay

people are fully capable of making.

The exception to the general exclusion of opinion evidence that

attracts the gre atest legal attention is for expert witnesses. We let expert

witnesses offer opinions where triers of fact do not have the special

training or experience required to make the relevant and worthwhile

inferences the expert witnesses are offering. In effect, we sometimes

allow experts to testify about their opinions because, without expert

help, we could not gain access to useful information — information that

2 R v D(D), [2000] 2 SCR 275 at para 49 [D(D)].

3 See Section 2, “The ‘L ay Opinion Evidence’ Rule,” below in this c hapter.

Opinion and Ex pert Evidence 235

is “beyond the ken [or understanding] of the average juror” because it

takes “special knowledge or experience” to acquire.4 To return to the

example above, medical doctors have special training in the prognosis

of injuries and are able to describe such things as the impact of having

a severed carotid artery. We would therefore permit a properly quali-

fied medical doctor to offer the opinion, where relevant, that such a

wound was life threatening. We determine the admissibility of expert

opinion evidence through several rules, described in this chapter, that

we will refer to collectively as the “exper t evidence admissibility rule s.”5

Given that there are two exceptions to the opinion evidence rule,

it is important to identify which exception to consider when opinion

evidence is being offered. If all that is required to form the opinion is

ordinary ex perience, then the lay opinion evidence rule should be used.

For example, the lay opinion evidence rule governed whether a police

officer could testify about the direction in which a person was running

when they made footprints in the snow, since “any school child would

deduce this from the tracks . . . observed.”6 By contrast, if special train-

ing or experience is needed to form the opinion, then the expert evi-

dence admissibility rules apply. For example, evidence predicting the

effects that the pharmaceutical Antabuse would have on alcohol abuse

had to meet the expert evidence admissibility rules.7

There are, of course, close cases where it is difficult to determine

whether the lay opinion evidence rule or the expert evidence admissi-

bility rules apply. To avoid confusion, it is helpful to keep two principles

in mind. First, the key consideration is not who is offering the opinion,

but the nature of the opinion that is being offered — and more particu-

larly, whether the opinion being offered could be formed only by some-

one with special training or expertise. In R v Collins, for example, the

expert evidence admissibility rules did not apply to testimony about

the results of an experiment conducted by police officers to determine

whether bullets would ricochet off the water, striking a target on the

opposite shore.8 That experiment did not require expertise to conduct,

4 R v Lavallee, [1990] 1 SCR 852 at para 35 [Lavallee]. Se e Section 4.3(b), “Thr esh-

old Requirement 2: Nece ssity,” b elow in this chapter.

5 See below in thi s chapter, Section 4, “Expert Witnes ses”; Section 5, “A dditional

Expert Ev idence Admissibility Ru les”; S ection 6, “The Forms of Expert Evi-

dence”; and Section 7, “Special Rules Re lated to Presentation and Ev aluation.”

6 R v Lee, 2010 ABCA 1, aff’d [2010] 3 SCR 99 at p ara 6.

7 Children’s Aid Society of Simcoe County v J D, 2 010 ONSC 3542. But see Arct ic

Foundations of Can ada Inc v Mueller Canada Inc, 200 9 MBQB 309, where the trial

judge improperly used t he lay opinion rule to exam ine the admission of test i-

mony about the failure of a t hermosyphon system on the s tability of structure s.

8 Collins, above note 1.