COURT OF APPEAL FOR ONTARIO
GILLESE, BLAIR and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Peter W. S. Copeland for the appellant
(Respondent)
- and -
WAYNE BULMAN
James V. Palangio for the respondent
(Appellant)
Heard: March 8, 2007
On appeal from the convictions entered on January 9, 2006, by Justice Barry G. A. MacDougall of the Superior Court of Justice, sitting with a jury.
GILLESE J.A.:
1The appellant was driving a car when it went off the road. The passenger in his car, Linda Smith, was killed.
2The appellant was convicted of driving “over 80”, dangerous driving causing death, and impaired driving causing death. He was sentenced to two years imprisonment and three years probation in relation to the counts of impaired driving causing death and dangerous driving causing death. The count of driving with excess blood alcohol was stayed.
3The appellant appeals against conviction. He argues that the convictions should be set aside because the trial judge:
(i) erred in permitting the jury to rely upon opinions expressed by the Crown’s accident reconstructionist, Constable Gary Blackman, that were outside of his area of expertise, amounted to nothing more than his belief, and were without foundation in science or empirical study; and,
(ii) failed to instruct the jury that there was no evidence upon which it could conclude that the appellant had not engaged in bolus drinking prior to the accident.
Constable Blackman’s Evidence
4Constable Blackman testified that the accident was caused by three factors: the appellant’s excessive speed, his sudden steering manoeuvre to the right at a left-hand bend in the road, and his impairment. No objection was taken at trial to the admissibility of Constable Blackman’s opinion. Indeed, counsel for the appellant at trial conceded Constable Blackman’s expertise in accident reconstruction. The appellant now claims the trial judge failed to exercise his “gatekeeper” function by permitting Constable Blackman’s evidence regarding excessive speed and impairment as contributing causes of the accident to go to the jury.
5In my view, Constable Blackman was qualified, by virtue of his training and experience, to give those opinions. The weight to be accorded those opinions was for the jury to decide.
6On the issue of speed, the appellant’s complaint is essentially that because no mathematical calculation or scientific computation was possible, Constable Blackman should not have been permitted to proffer the opinion that the appellant was travelling in excess of the speed limit. It is said his opinion was unreliable and that there was substantial potential for prejudice.
7However, Constable Blackman did not have to be an engineer before he could proffer his opinion on speed. Witnesses can obtain the necessary expertise through training and experience.
8The principle requirement for the admission of expert evidence is that the witness possess special knowledge and experience going beyond that of the trier of fact. Constable Blackman had extensive training and experience in accident reconstruction. At the time of trial, he had attended at or reconstructed 127 fatal collisions and 88 serious personal injury collisions involving motor vehicles, all-terrain vehicles and vessels; he was one of only three marine accident reconstructionists in the province; and he had testified as an expert in 20 matters before various courts and tribunals. Any alleged deficiencies in Constable Blackman’s opinion went not to its admissibility but to its weight. The weight to be accorded to his opinion was a matter for the jury.
9Constable Blackman’s opinion on the speed of the appellant’s vehicle – which was neither technical nor complex – was based not only on the extensive damage to the appellant’s vehicle, but also on the dynamics of the accident itself. The dynamics of the accident included that the vehicle had become airborne three times; struck one, then a second tree; rolled; and ended up at the bottom of a ravine. All of this occurred over a considerable distance. Constable Blackman’s opinion on speed was, in my view, well within his area of expertise.
10Furthermore, the trial judge correctly charged the jury on how it was to treat expert evidence, including a mid-trial instruction given immediately after Constable Blackman’s expertise was conceded by the defence, and before he testified in examination-in-chief. The trial judge said:
Because the defence has also acknowledged that this witness, Officer Gary Blackman, possesses the – the qualifications to be qualified as an expert in the area of collision re-construction, it also applies to him, and will also apply to any other experts that are qualified to testify here.
Sometimes knowledge of a technical subject may help jurors decide a case. Persons who are qualified in that subject by training, education or experience, may state their opinions about it. They may also give reasons for their opinion. The opinions of experts are just like the testimony of any other witness. Just because an expert has given an opinion, does not require you to accept it. You may give the opinion as much or as little weight as you think it deserves.
Here are some things to consider as the expert testifies: the education and experience of the expert, the reasons given for the opinion, the suitability of the methods used and other evidence in the case. It is up to you to decide how much or little to rely on an expert’s opinion. Experts usually form their opinions by applying their training, education and experience to a number of facts which the expert assumes as the basis for his or her analysis. What an expert assumes as a fact for the purpose of offering his or her opinion may be the same or different from what you later find as facts in coming to your decision from the evidence introduced in this case. To the extent that the facts you find are different from the facts assumed by the expert in reach[ing] his or her conclusion, you may consider the expert’s opinion less reliable in helping you decide this case. How much or little you believe of or rely upon an expert’s opinion is entirely up to you. [Emphasis added]
11In light of the straightforward and non-technical nature of Constable Blackman’s impugned opinion, his vigorous cross-examination, the trial judge’s mid-trial and final instructions and the closing addresses of counsel, there was no danger that the jury would accept Constable Blackman’s opinion that the appellant’s vehicle was travelling in excess of 80 km/hr as “virtually infallible”, and give it more weight than it deserved. This is particularly so given defence counsel’s concession during his closing address that “Mr. Bulman might have been travelling too fast for that particular scene, but not speeding.” The issue, then, was really a question of degree. This was manifestly a question for the jury to resolve.
12In relation to impairment, I note that there was ample evidence about the appellant’s behaviour which the jury could find was consistent with him being impaired. That evidence came from Constable Crowder, Mr. Gordon, the paramedics and Mr. Wigmore, the forensic toxicologist. It was clear to the jury that Constable Crowder’s opinion of impairment was the basis for Constable Blackman’s view and that they had to accept Constable Crowder’s evidence on this matter before they could rely on Constable Blackman’s opinion that impairment was a contributing cause.
Bolus Drinking
13The jury was aware that Mr. Wigmore’s expert testimony was dependent on an underlying assumption that had to be proven by the Crown – namely, that the appellant had not consumed a large quantity of alcohol shortly before driving (“bolus drinking”). Whether Mr. Wigmore’s underlying assumption was proven was a question of fact for the jury to decide. In making this finding, the jurors were entitled to rely upon their common sense, and to draw inferences about how normal people behave. A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving.
14In any event, the jury had evidence that bolus drinking was “abnormal”. Mr. Wigmore repeatedly referred to the bolus drinking and post-offence drinking scenarios as “abnormal”. In the absence of any evidence suggesting that the appellant’s drinking pattern on this occasion was abnormal or unusual, the jury was entitled to conclude that the underlying assumptions of Mr. Wigmore’s opinion had been proven beyond a reasonable doubt.
15In addition to Mr. Wigmore’s evidence concerning the rarity of bolus drinking, the jury was entitled to consider the inherent implausibility of the appellant exhibiting indicia of impairment within as little as ten to fifteen minutes after the accident if he had not been impaired when he was driving.
16The jury was fully, fairly, and properly instructed in the law. No objection was taken to the charge at trial, and none is raised now. The jury was entitled to find as a fact that the underlying assumptions had been proven beyond a reasonable doubt.
DISPOSITION
17Accordingly, I would dismiss the appeal.
RELEASED: March 14, 2007 (“EEG”)
“E. E. Gillese J.A.”
“I agree R. A. Blair J.A.”
“I agree S. E. Lang J.A.”
