R. v. Collins (R.), (2001) 150 O.A.C. 220 (CA)

• Judge: Charron, Sharpe and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 05, 2001
• Jurisdiction: Ontario
• Citations: (2001), 150 O.A.C. 220 (CA)

R. v. Collins (R.) (2001), 150 O.A.C. 220 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. OC.015

Her Majesty the Queen (respondent) v. Ralph Collins (appellant)

(C32825)

Indexed As: R. v. Collins (R.)

Ontario Court of Appeal

Charron, Sharpe and Simmons, JJ.A.

October 5, 2001.

Summary:

A court composed of a judge and jury found Collins guilty of causing death by criminal negligence. Collins was sentenced to four years and seven months' imprisonment. He appealed against conviction only.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: For a related decision, see 99 O.T.C. 372.

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - The Ontario Court of Appeal held that experiment evidence, if it was 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 outweighed its value - Beyond this, when the evidence required the making of inferences from observed facts that required special knowledge, the test in Mohan (relevancy, necessity, inapplicability of an exclusionary rule, evidence given by a properly qualified expert) would have to be met before the evidence could be admitted as opinion evidence - See paragraphs 16 to 33.

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - A seven year old boy sitting on a log on one side of a lake died when a bullet fired by the accused from the shore on the other side of the lake struck him - The Crown theorized that the bullet had ricocheted off the surface - The Crown relied on the evidence of a police officer qualified by the court as an expert in the handling and use of firearms, including the type used by the accused - The officer testified about an experiment that he led at the scene of the accident whereby shots were fired on the water from the accused's rifle and ricocheted off the water to strike a "large target" placed where the boy had been sitting - 15 of the 16 shots fired struck the target - The trial judge held that the experiment evidence was admissible where the experiment was not scientific nor unusual, the police officer had the requisite expertise and the evidence was relevant to the issues before the court and necessary for the jury to understand whether bullets could ricochet off the water as alleged - The Ontario Court of Appeal upheld the trial judge's decision where the officer's testimony was factual in nature, the experiment evidence was material and relevant and the accused had not shown any prejudice that would justify exclusion - See paragraphs 34 to 39.

Evidence - Topic 216

Inferences and weight of evidence - Inferences - Inference of cause and effect - A seven year old boy sitting on a log on one side of a lake died when a bullet fired by the accused from the shore on the other side of the lake struck him - The Crown theorized that the bullet had ricocheted off the surface - The Crown presented experiment evidence to support its theory - The Ontario Court of Appeal held that the evidence was admissible but Simmons, J.A., concurring, stated: (1) the experiment evidence created a risk of prejudice to the accused where the jury could use the evidence to conclude that alternate theories of causation had been excluded by the experiment, when that was not the case; and (2) where, as here, there were, or could be, conflicting versions of how a particular incident transpired, and an experiment was conducted to demonstrate the plausibility of one of those versions, it was desirable that the jury be cautioned about the inferences it could draw from the evidence of the experiment - See paragraphs 48 to 83.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The trial judge instructed the jury as follows: "where an expert's opinion favours the Crown, the opinion of the expert witness may be valid only if the evidentiary basis of the opinion is factually true. On the other hand, where the opinion of the expert witness favours the accused, you are entitled to act on it if you find, as a first step, that its evidentiary basis is factually true or if you have a reasonable doubt as to whether it is true or false. It is only when you find that the evidentiary basis is false that you must not consider the opinion of an expert witness that favours the accused." - The Ontario Court of Appeal held that the this instruction was incorrect as a general principle of law and should not be routinely given - There was no basis at law for differentiating between Crown and defence expert opinion evidence when it came to assessing the evidentiary foundation for the opinion - See paragraphs 45 and 46.

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402; 29 C.R.(4th) 243; 114 D.L.R.(4th) 419, refd to. [para. 14].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; 138 D.L.R.(3d) 202; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 29 C.R.(3d) 193; 68 C.C.C.(2d) 394, refd to. [para. 17].

R. v. Graat (1982), 45 N.R. 451; 2 C.C.C.(3d) 365 (S.C.C.), refd to. [para. 17].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385; 28 B.C.L.R.(2d) 145, refd to. [para. 18].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341; 7 C.C.C.(3d) 97; 1 D.L.R.(4th) 385, refd to. [para. 18].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 7 C.R.(4th) 117; 6 C.R.R.(2d) 35; 66 C.C.C.(3d) 321; 83 D.L.R.(4th) 193, refd to. [para. 18].

R. v. S.C.B. (1997), 104 O.A.C. 81; 119 C.C.C.(3d) 530 (C.A.), refd to. [para. 19].

Kirkpatrick et al. v. Lament (1965), 51 D.L.R.(2d) 699 (S.C.C.), consd. [para. 24].

R. v. Laverty (No. 2) (1979), 47 C.C.C.(2d) 60 (Ont. C.A.), consd. [para. 25].

R. v. Kelly, [1985] O.J. No. 237 (C.A.), consd. [para. 27].

R. v. Brooks (F.A.) (1999), 113 O.A.C. 201; 129 C.C.C.(3d) 227 (C.A.), consd. [para. 28].

R. v. Gillese (P.T.) (1993), 27 B.C.A.C. 69; 45 W.A.C. 69 (C.A.), consd. [para. 30].

Toronto Helicopters Ltd. v. Intercity Ford Ltd. (1995), 18 M.V.R.(3d) 203 (Ont. Gen. Div.), refd to. [para. 31].

R. v. Subhani (O.) (1998), 59 O.T.C. 203 (Gen. Div.), consd. [para. 32].

R. v. Meads, [1996] Crim L.R. 519 (C.A.), consd. [para. 33].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641; 137 C.C.C.(3d) 225 (C.A.), consd. [para. 34].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 224 W.A.C. 1; 143 C.C.C.(3d) 289, refd to. [para. 42].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 46].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239, refd to. [para. 46].

Authors and Works Noticed:

McCormick on Evidence (2nd Ed. 1972), pp. 484 to 485 [para. 25].

Counsel:

Gregory Lafontaine, for the appellant;

Thomas Galligan, for the respondent.

This appeal was heard on April 9, 2001, by Charron, Sharpe and Simmons, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on October 5, 2001, and the following reasons were filed:

Charron, J.A. (Sharpe, J.A., concurring) - see paragraphs 1 to 47;

Simmons, J.A. - see paragraphs 48 to 83.