Lay Opinion Evidence

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 89421)

General Principles

Generally, a witness may only testify to observed facts from which the trier-of-fact may draw inferences.[1] This includes matters relating to their "knowledge, observation and experience."[2] The main rationale for this limitation is that the "ready-formed references are not helpful to the trier of fact and might even be misleading."[3] The personal belief or opinion by a non-expert is presumptively not admissible.[4] There are limited exceptions where opinion is permissible.[5]

One articulation is that it is permissible where the opinion is simply a "common sense inference drawn by Sgt. Carriere from a compendium of observed facts."[6]

Opinion vs Observation

An opinion is simply an "inference from observed fact."[7] Accordingly, a mere claim of "that's the guy" in identifying a person is simply an opinion where there is evidence underlying the conclusion given goes to it's weight.[8]

There is no blight line between fact and opinion.[9]

There is some distinction to be made between factual observations based on their "knowledge, observation and experience", which amounts to conclusions that are beyond the familiarity of the trier of fact, and actual lay opinion. [10]

Where Lay Opinion is Admissible

Lay opinion, being an opinion of a person who is not qualified as an expert, can be admissible in trial where the opinion constitutes a "compendious statement" of the observations of a witness in relation to matters of common experience where no special knowledge is required and the opinion is so close to fact that it is impossible to separate the two. [11]

There is no closed list of subjects upon which lay opinion may be given.[12]

Lay opinion should usually have the following characteristics to be accepted:[13]

  1. the witness has personal knowledge of observed facts;
  2. the witness is in a better position than the trier of fact to draw the inference;
  3. the witness has the necessary experiential capacity to draw the inference; and
  4. the opinion is a compendious mode of speaking and the witness could not as accurately, adequately, and with reasonable facility describe the facts he or she is testifying about.
  1. R v Collins, 2001 CanLII 24124 (ON CA), 160 CCC (3d) 85, per Charron JA (2:1), at para 17
    WBLI v Abbott and Halibruton, 2015 SCC 23 (CanLII), [2015] 2 SCR 182, per Cromwell J (7:0), at para 14 ("Witnesses are to testify as to the facts which they perceived, not as to inferences -- that is, the opinions that they drew from them.")
  2. R v Xiao, 2016 BCSC 854 (CanLII), per Dley J, at para 23
  3. WBLI, supra, at para 14
  4. R v Browne and Angus, 1951 CanLII 393 (BCCA), 99 CCC 141 (BCCA), per O'Halloran JA
  5. R v Graat, 1982 CanLII 33 (SCC), [1982] 2 SCR 819, per Dickson CJ (7:0), at pp. 835, 837
    R v Falkenberg, 1995 ABCA 27 (CanLII), 95 CCC (3d) 307, per curiam, at p. 309 leave ref’d [1995] S.C.C.A. No 88
  6. R v Lee, 2010 ABCA 1 (CanLII), 251 CCC (3d) 346, per curiam (2:1)
  7. Collins, supra, at para 17
  8. R v Le (T.D.), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Scott CJ, at para 139
    Browne and Angus
    R v Smith, 1952 CanLII 116 (ON CA), 103 CCC 58, per MacKay JA
    R v Harrison, 1950 CanLII 414 (BCCA), 99 CCC 96 (BCCA), per O'Halloran JA (3:0)
    R v McDonald, 1951 CanLII 416 (BCCA), 101 CCC 78 (BCCA), per O'Halloran JA
    R v Yates, 1946 CanLII 230 (BCCA), 85 CCC 334 (BCCA), per O'Halloran JA
    R v Sitar (1992), 78 Man.R. (2d) 101(*no CanLII links) , at paras 5 to 6 (CA)
  9. R v Ilina, 2003 MBCA 20 (CanLII), 172 CCC (3d) 240, per Scott CJ, at para 72
    Graat, supra, at p. 835
  10. R v Hamilton, 2011 ONCA 399 (CanLII), 271 CCC (3d) 208, per curiam, at para 259 -- telecom engineers testified to cell phone communication towers
    Ilina, supra, at paras 64 to 66 - officer testifies to bloody trail suggesting "clean up" marks
    R v Colpitts, 2016 NSSC 48 (CanLII), per Coady J - fraud investigator testifies to stock manipulation
  11. Graat, supra
    R v Montague-Mitchell, 2018 SKCA 78 (CanLII), 368 CCC (3d) 322, per Richards CJ, at para 38 ("lay witnesses may offer opinions where they are 'merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly.' ") R v Collins, 2001 CanLII 24124 (ON CA), 160 CCC 85 (Ont. CA), per Charron JA (2:1)
    Ilina, supra, at para 80
    E. G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed. (Toronto: Canada Law Book, 2002), 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.")
  12. Graat, supra, at p. 835
    Ilina, supra, at para 74
  13. R v Parada, 2016 SKCA 102 (CanLII), per Herauf JA (3:0), at para 26

Examples of Lay Opinion

There is an unlimited number of categories of observations that a layperson can testify to.[1] Lay opinion has been found to be valid in relation to the following:

  • the identification of handwriting, persons and things;[2]
  • apparent age;[3]
  • the bodily plight or condition of a person, including death and illness;[4]
  • the emotional state or state of mind of a person (e.g. distressed, angry, aggressive, affectionate or depressed, state of shock, fear, happiness); [5]
  • the condition of things—e.g. worn, shabby, used or new; [6]
  • certain questions of value;[7]
  • estimates of speed and distance;[8]
  • visual identification of persons in videos; [9]
  • visual identification of persons in pictures;[10]
  • visual identification of persons in court;[11]
  • visual identification of vehicles; [12]
  • audio identification; [13]
  • voice identification;[14]
  • identification of a shoe tread, including the type of shoe associated with the tread [15]
  • that blood stains suggest someone tried to "clean up."[16]
  • direction of walking based on footprints in snow[17]

A lay opinion that is formed from observations in close association and over a long period of time should be given considerable weight.[18]

  1. R v Parada, 2016 SKCA 102 (CanLII), per Herauf JA (3:0), at para 25
  2. See R v Graat, 1982 CanLII 33, [1982] 2 SCR 819, per Dickson J (7:0)
    CEA s. 8
    R v Pitre, 1932 CanLII 69 (SCC), [1933] SCR 69, per Smith J
    R v Abdi, 1997 CanLII 4448 (ON CA), 116 CCC (3d) 385, per Robins JA (3:0)
  3. Graat, supra
  4. Graat
  5. Graat, supra
    See Watt’s Manual of Criminal Evidence (2012 ed), Toronto: Carswell: 2012, at p. 462
    R v Falkenberg, 1995 ABCA 27 (CanLII), 95 CCC (3d) 307, 165 AR 16, per curiam (3:0), at para 7
  6. Graat, supra
  7. Graat, supra
  8. Graat, supra
  9. R v Leaney, 1989 CanLII 28 (SCC), [1989] 2 SCR 393, per McLachlin J
    R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J
  10. R v Richards, 1963 CanLII 678 (BCCA), [1964] 2 CCC 19 (BCCA), per Bird JA
  11. R v Izzard, 1990 CanLII 11055 (ON CA), (1990) 54 CCC (3d) 252, per Morden JA
  12. R v Assoun, 2006 NSCA 47 (CanLII), 207 CCC (3d) 372, per curiam (3:0)
  13. R v Williams, 1995 CanLII 695 (ON CA), 98 CCC 160 (Ont.CA), per Finlayson JA
  14. R v Grabowski, 1983 CanLII 3579 (QC CA), 8 CCC (3d) 78, per McCarthy JA
    R v Murray, 1916 CanLII 363 (AB CA), (1916) 27 CCC 247 (ABCA), per Beck JA
  15. R v Hill, 1986 CanLII 4722 (ON CA), 32 CCC (3d) 314, per Martin JA
    R v Powell, 2006 ABCA 267 (CanLII), per Martin JA
    R v Lee, 2010 SCC 52 (CanLII), [2010] 3 SCR 99, per curiam (7:0)
  16. R v Ilina, 2003 MBCA 20 (CanLII), 172 CCC (3d) 240, per Scott CJ, at para 64 onward
  17. R v Lee, 2010 ABCA 1 (CanLII), 251 CCC (3d) 346, per curiam (2:1)
  18. see Re: Price v Spence, 1945 CanLII 339 (ON CA), [1946] O.W.N. 80, 2 DLR 592, per Laidlaw JA and Roach JA (2:1), at para 17

Police Evidence

Police as a class of witnesses are often permitted to give opinion evidence as to their observations.[1]

  1. R v Lee, 2010 ABCA 1 (CanLII), 251 CCC (3d) 346, per curiam (2:1)
    R v Ilina, 2003 MBCA 20 (CanLII), 172 CCC (3d) 240, per Scott CJ (3:0)

Handwriting Evidence

See also: Real Evidence

It is permissible lay opinion evidence for a witness to testify to identifying handwriting.[1]

A competent witness to testify to handwriting should have "frequently seen the person's handwriting" or has engaged in "regular correspondence" with the person.[2]

Handwriting comparison

8. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting those writings, may be submitted to the court and jury as proof of the genuineness or otherwise of the writing in dispute.
R.S., c. E-10, s. 8.

CEA


Note up: 8

A judge is permitted to engage in his own comparison of handwriting. He does not need to give notice to defence before engaging in analysis.[3]

  1. R v Abdi, 1997 CanLII 4448 (ON CA), 116 CCC (3d) 385, 34 OR (3d) 499, per Robins JA
  2. Pitre v The King, 1932 CanLII 69 (SCC), [1933] SCR 69 ("It is not necessary to prove handwriting by an expert witness, but it must be established that the witness has in some way become competent to testify as to the handwriting; and it has been laid down that a witness may be competent by reason of having become familiar with a person’s handwriting through a regular correspondence or through having frequently seen the person’s handwriting. On the bare facts established here, I do not think the learned trial judge erred in refusing to accept the witness as one competent to testify as to the appellant’s handwriting.")
  3. R v Cunsolo, 2014 ONCA 364 (CanLII), per curiam (3:0), at paras 40 to 44

See Also