COURT OF APPEAL FOR ONTARIO

DATE: 20000207

DOCKET: C28787

ROSENBERG, FELDMAN and MacPHERSON JJ.A.

B E T W E E N :

HAROLD TAYLOR

Plaintiff (Respondent)

• and -

WEIRLY SAWH and BURN INTERNATIONAL SECURITY SERVICES LIMITED

Defendants (Appellants)

John A. Little,
for the appellant

Wayne P. Cipollone and T. J. Cass,
for the respondent

Heard: December 1, 1999

On appeal from the judgment of Sutherland J. dated November 24, 1997

ROSENBERG J.A.:

[1] The only real issue at the trial of this motor vehicle accident was whether the accident occurred on the plaintiff’s side of the road or the defendant’s side. The plaintiff and the individual defendant testified and the two parties each presented an expert witness whom they had retained. The jury found in favour of the plaintiff, finding that the defendant Sawh was 100% responsible for the collision. The defendants advance two grounds of appeal. They both concern the evidence of the police officer who investigated the accident. The appellants submit that the trial judge erred in refusing to permit the police officer to give his opinion as to the location of the accident. They also submit that the trial judge misdirected the jury about a report that was prepared by the officer but never entered into evidence. In my view, the trial judge erred in both respects. However, it is also my view that these errors did not result in any substantial wrong or miscarriage of justice and that accordingly the appeal should be dismissed pursuant to s. 134(6) of the Courts of Justice Act, R.S.O. 1990, chap. C.43.

THE FACTS

The accident

[2] The accident occurred at approximately 6:00 a.m. on February 1, 1994 on Danforth Road, in the former City of Scarborough. The respondent Harold Taylor was 53 years of age. He was on his way to work. There was no evidence to indicate that his faculties were in any way impaired or that he was not keeping a proper lookout prior to the accident. The appellant Weirly Sawh was an employee of the corporate appellant Burn Security Service. Mr. Sawh was working a midnight to 7:00 a.m. shift. His principal duty that night was writing parking tickets for private property owners. He was driving a car owned by his employer. There was no evidence that his faculties were impaired. There was, however, evidence to which I will return to indicate that he was not keeping a proper lookout just prior to the collision.

[3] Mr. Sawh was proceeding southbound on Danforth Road and Mr. Taylor was proceeding northbound. There are two lanes northbound and southbound. Both men were in their respective passing lanes. There were snowbanks on the curbs but the road itself was clear of snow. The weather was clear and very cold. It was still dark at 6:00 a.m. As he was proceeding southbound, Mr. Sawh came upon a pronounced curve. The accident occurred just at the point where a southbound car would be exiting the curve. Mr. Taylor, however, was still on a straight portion of the road. If he did not negotiate the curve properly and continued driving straight, Mr. Sawh would have entered the northbound lanes.

[4] Mr. Taylor was seriously injured in the accident and he had no memory of the actual collision. His last memory was that he was in his own lane and then saw bright lights coming at him. Mr. Sawh testified that the Taylor vehicle crossed into his lane and collided with his vehicle.

[5] Mr. Sawh’s evidence was not very satisfactory. The trial judge commented adversely on his credibility in the charge to the jury and in the course of objections to the charge, appellant’s counsel conceded that there were a number of inconsistencies in Sawh’s evidence. Mr. Sawh gave conflicting versions of his speed to the investigating officer, at discovery and at trial. Mr. Sawh testified that he was using the bank of snow in the middle of the roadway as a marker for staying in his lane and not crossing the centre of the roadway. The investigating officer testified that there was no snow in the centre of the road. Finally, Mr. Sawh told the investigating officer and testified at trial that he had his mind on his job and was not really paying attention to the oncoming traffic.

[6] Constable Thomas arrived at the scene about fifteen minutes after the collision. At the time, emergency personnel were attempting to extricate Mr. Taylor from his vehicle. Constable Thomas made observations of the vehicles, the roadway and the snowbank. He testified that the snow at the curb on Mr. Taylor’s side of the road had been disturbed and scattered along the road. He also observed tire marks in a kind of zigzag across the road to a gouge in the pavement in the southbound lane, i.e. Mr. Sawh’s side of the road.

[7] The appellants and respondent both called expert evidence. The appellants’ expert gave the opinion, based in part on Constable Thomas’ evidence, that the Taylor vehicle bounced off the snowbank and veered into the oncoming traffic with the collision occurring at the point where Constable Thomas noticed the gouge. If the jury had accepted this evidence, they would have found that the respondent was partly if not wholly liable for the accident. The respondent’s expert’s opinion was based primarily on the nature of the damage to the two vehicles and the nature of the roadway. It was his opinion that the Sawh vehicle had failed to negotiate the curve and crossed into the northbound lane where it collided with the Taylor vehicle.

The voir dire

[8] The trial judge conducted a voir dire to deal with two aspects of Constable Thomas' evidence. The appellants first sought to introduce the official report of the accident that Constable Thomas had prepared. The trial judge ruled that the report was not admissible. The appellants do not challenge that ruling. Constable Thomas did not refer to the official police report at any time during his evidence. He was not cross-examined on its contents.

[9] In the course of his evidence, Constable Thomas did refer to his notes both in examination-in-chief and in cross-examination. He used the notes to refresh his memory. Respondent’s counsel also made good use of the notes in cross-examination. He was able to demonstrate that Constable Thomas had not made a note of the gouge in the road nor the zigzag pattern of the tire marks. These parts of Constable Thomas' evidence were important to the opinion of the appellants’ expert as to where the collision occurred and to explain the damage pattern.

[10] Second, the appellants sought to have Constable Thomas give his opinion as an expert in accident reconstruction as to the point of impact. Constable Thomas has extensive credentials. He had been an officer for some twenty years at the time of this investigation. Much of his career has been spent in the Toronto Police Department Traffic Unit. He had investigated approximately 6,100 motor vehicle accidents. He has taught courses in police accident investigation. He has also taken a number of courses including a two-week course in accident reconstruction. Constable Thomas does not, however, have a university degree and is not an engineer. He has given expert evidence in accident reconstruction in criminal cases, but had not done so in any civil case.

[11] The trial judge ruled that while Constable Thomas could give evidence as to his observations at the scene, he could not give his opinion as to the point of impact. The trial judge based his ruling on the decision of the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. In that case, at p. 20 Sopinka J. summarized the criteria for admission of expert evidence as follows:

(a) relevance;

(b) necessity in assisting the trier of fact;

(c) the absence of any exclusionary rule;

(d) a properly qualified expert.

[12] The trial judge found that Constable Thomas was a properly qualified expert. The trial judge did not expressly refer to any exclusionary rule that might make his opinion inadmissible. The trial judge appears to have excluded the evidence on the basis of necessity, because there were two other experts who would testify, and perhaps on the basis of relevancy in that the prejudicial effect of his evidence would outweigh its probative value. The key part of his ruling is as follows:

In this case, I find that, although

P.C. Thomas knows more than this tribunal about accident re-construction, there is no necessity for his evidence because there are highly qualified experts who have, or will, testify and who have produced, for the use of counsel, expert reports with respect to the accident and particularly with respect to the main issue in question.

This is a jury case and, in all the circumstances, I find it inappropriate that the police constable be permitted to give opinion evidence as to the point of impact between the two vehicles.

Further, it is my finding that, although P.C. Thomas has given evidence in criminal cases as an expert of traffic re- construction, he has not been permitted to do so in a civil case before now. This is not an appropriate case to be the first case because, here the element of necessity as referred to by Justice Sopinka is not present and there is also, really, potential danger of a prejudicial effect that exceeds any possible benefit. But I would also point out that although P.C. Thomas is obviously experienced and has shown interest in working in this area, he is not an engineer. He could not say, in this case, just when he submitted his report but it would appear to have been submitted very soon after the accident in question.

It came out in the evidence that he had spoken to one of the drivers but that he had not, on the day in question or at any subsequent time, spoken to the plaintiff who was taken away from the scene of the accident in an unconscious state. The element of necessity comes back in here, in that if this was a smaller case and there were no other experts to assist the Court, the Court might well admit the constable's opinion evidence, on the basis of his expertise and on the basis of necessity.

Here, however, the necessity element is not present and the suggested opinion evidence supports a risk of prejudice and therefore there is no good reason to allow the police constable to give the opinion evidence here in question. [Emphasis added.]

[13] Accordingly, at the trial proper, while Constable Thomas testified at length about his observations, he did not give his opinion as to the point of impact. That opinion, based on Constable Thomas’ evidence, was given by the defence expert, Mr. Raftery. Mr. Raftery is a professional engineer specializing in accident reconstruction.

The Charge to the Jury

[14] The ground of appeal concerning the charge to the jury centres on the trial judge’s references to the police report. Notwithstanding that he had ruled that the appellants could not introduce the report and that no reference was made to it in Constable Thomas’ evidence, the trial judge discussed its contents with the jury on several occasions as follows:

… The plaintiff has mounted a serious attack or question on P.C. Thomas's evidence and points out that there was no reference to gouge marks in his notes, that there is no explanation whatsoever in the public report that was filed as it was required to be under the statute for the usual police report. It included a conclusion by this officer that the impact took place in the southbound lane but it said very little about how. There is a problem in this regard. It has been suggested to you that the Police Constable had no ax to grind. In this regard I want you to recall what I said to you early on about not taking positions too soon among yourselves because it is hard to back down. This police officer had filed a police report and made his measurements, and having talked to Mr. Sawh at the Scarborough Hospital, and not ever having talked to Taylor, his notes do not include some of the things that were in his evidence. He knew that that report was out by way of a document. Anybody could get it. He had interviews with the plaintiff's investigator and discussions with the defendant's professional engineer. He had seen Mr. Prescott's first report. He knew before he came here and, presumably, also in some of his discussions subsequent to Mr. Prescott's report coming out, that Mr. Prescott's report was quite critical of his findings. I leave it to you to question whether he would not have a tendency to try to defend the conclusions in his first report which was made on the day of the accident. The way some of this information seems to have come out later is awkward. Now, it may just have happened, but we hear about gouge marks when it is not in the notes; we hear about tracks, and then we know that there is a difficulty with the angle of the impact, that Prescott has made a lot about the angle. You hear about zigzagging, and the zigzagging does not seem to come up in the early information. It certainly was not in the police report. That does not mean that it is just ipso facto or by its own self wrong, it does not necessarily mean that, but the public report, I would have to say, is not a very good report for all the years that he had of experience. It said, the public one, that you are not going to see, very, very little about how he arrived at his conclusion. Now, you have heard evidence – he acknowledged that he would need his notes. He acknowledged that he took the statement from Sawh that said he was going from 55 to 60 miles an hour, quite different from what Sawh was saying on his discovery. He talked about a fresh gouge mark at trial. The word "gouge" was not used in his notes. He said the tracks could be followed from the snowbank in a zigzag course. The notes say nothing of a zigzag course. …

…The police report of Mr. Sawh's statement makes no reference to a zigzag pattern. In regard to no ax to grind, there is certainly no suggestion that P.C. Thomas had any monetary ax to grind. All that he would perhaps have is a desire to buttress a position that he had already publicly taken, and he may not have done that. He may have the memories that he said he had. [Emphasis added.]

[15] It will also be seen that the trial judge disparaged Constable Thomas' evidence on the theory that he may have seen the report of the respondent’s expert, Prescott, before testifying. There was no direct evidence that Constable Thomas had seen Prescott’s report and he was not cross-examined about this.

[16] Defence counsel objected to the charge to the jury. He pointed out that the only evidence about the contents of the police report had come out during the voir dire and was not evidence before the jury. Counsel submitted that it was unfair to disparage Constable Thomas’ evidence about what was not in the report when he had not been given an opportunity to explain. Counsel also pointed out that there was no evidence that the officer had seen the Prescott report. The trial judge did not recharge the jury.

The Verdict

[17] The jury found Mr. Sawh to be entirely responsible for the accident. The jury gave the following particulars of Mr. Sawh’s negligence:

Considering the damage to the vehicle, consistent portions of the statements by each side and the original police report, we believe the defendant’s not paying attention to the road or oncoming traffic had collided with the plaintiff in the northbound lane. [Emphasis added.]

ANAYSIS

The Admissibility of Constable Thomas’ Opinion

[18] The principal ground upon which the trial judge excluded Constable Thomas’ opinion as to the point of impact was necessity. In my view, the trial judge misdirected himself as to the meaning of necessity. In the context of the admission of expert evidence, necessity refers to information that is likely to be outside the experience and knowledge of the jury. The opinion of a qualified expert does not become unnecessary simply because there may be other, even other more qualified experts, who will be testifying at the trial. The same understanding of necessity applies in both criminal and civil cases. In R. v. Mohan, supra at pp. 23-24, Sopinka J. referred to civil and criminal decisions of the Supreme Court of Canada in explaining the necessity criterion:

This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher (Village of) v. Smith, 1931 CanLII 1 (SCC), [1931] S.C.R. 672, at p. 684 this Court, quoting from Beven on Negligence, (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". More recently, in R. v. Lavallee, supra, the above passages from Kelliher and Abbey were applied to admit expert evidence as to the state of mind of a "battered" woman. The judgment stressed that this was an area that is not understood by the average person. [Emphasis added.]

[19] The trial judge erred in excluding the officer’s opinion because it did not meet the necessity criterion.

[20] In the course of his reasons, the trial judge also stated that there was a potential danger of the prejudicial effect of the opinion evidence exceeding any possible benefit. In this context, the trial judge referred to the fact that the officer was not an engineer, that he had only spoken to Mr. Sawh after the accident, and that he could not say precisely when he submitted his report. In my view, none of these factors were grounds to exclude the opinion on the basis of prejudicial effect outweighing probative value. In R. v. Mohan at pp. 20-21, Sopinka J. discussed this balancing exercise under the relevancy criterion in the following terms:

Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs": see McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule (see Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing the admissibility of expert evidence.

There is a danger that expert evidence will be misused and will distort the fact- finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. [Emphasis added.]

[21] Constable Thomas’ evidence presented none of the concerns referred to by Sopinka J. His opinion was relatively straightforward. There was no danger that the jury would be misled by scientific language. The trial judge's decision to admit the opinion of two accident reconstructionists demonstrates this. The fact that Constable Thomas was not an engineer was also not a basis for excluding his evidence. Witnesses can obtain the necessary expertise through training and experience. See R. v. Dugandzic (1981), 1981 CanLII 3117 (ON CA), 57 C.C.C. (2d) 517 (Ont. C.A.). In M. J. Freiman & M. L. Berenblut, The Litigator’s Guide to Expert Witnesses, (Aurora, Ont.: Canada Law Book, 1997), in the chapter entitled “Motor Vehicle Accident Reconstruction”, David Bender at p. 303 makes these comments about the way in which a person can become an expert:

There are generally two avenues to becoming an experienced motor vehicle accident reconstructionist. One way of becoming a reconstructionist is through experience with the police force. Police forces or police-based training schools provide introductory courses in the reconstruction field. Advanced courses in such facilities, combined with practical field experience and self-learning programs, expand the experience base of police reconstructionists. Frequently, police reconstructionists are limited by the courts to giving evidence only on the investigation and documentation phases of the reconstruction. Depending on the experience and training level achieved by the particular officer, he or she may be qualified to give opinion evidence on some forms of dynamic issues based on scientific formulae and the basic principles of motion. For example, a police officer trained as a reconstructionist may be qualified to give evidence with respect to the speed of a vehicle based on the skid mark length on the road and the friction values personally measured by the officer. Unless trained as engineers, police investigators are not qualified to give opinion evidence on vehicle speeds based on crush patterns or in cases where complex dynamic motion has taken place. A second way to become a reconstructionist is by obtaining an engineering degree from a recognized college or university.…

[22] Finally, the fact that the officer had only spoken to one of the drivers and was uncertain as to exactly when he filed his report were not grounds for excluding his opinion. These matters went to weight not admissibility.

[23] An important concern when considering the admissibility of expert evidence is that the evidence will be misused and distort the fact-finding process. Often, the risk of misuse or distortion is because the jury may be unable to appreciate the limits of the opinion and may give it undue weight. However, all of the matters to which the trial judge referred would be apparent to the jury. Constable Thomas could be cross-examined on his qualifications, the fact that he did not get the plaintiff’s side of the story and even when he filed his report.[^1]

[24] In oral argument, it was suggested that the trial judge’s ruling could be supported on a broad policy basis that public officers such as Constable Thomas should not be asked to give opinions in private litigation. I do not agree. Constable Thomas was at the scene within minutes of the accident and could observe first-hand the aftermath of the collision. The defendant and the triers of fact were entitled to his evidence.

[25] It seems to me that the respondent’s real complaint about the admission of this opinion is that it happened to favour the appellant’s position and the jury would be unduly impressed with the fact that the witness was a state agent not paid by the parties. In my view, this is not a basis for excluding relevant evidence that might be helpful to the jury in dealing with the issues before it. We were referred to no case that supports the trial judge’s ruling. If the Legislature should consider that, for policy reasons, police officers should not give their opinions in civil cases it can legislate accordingly.

[26] I wish to make three final observations. This decision should not be taken as holding that investigating police officers will always be permitted to give their opinions. As the excerpt from the Freiman and Berenblut text indicates, police officers will have varying levels of expertise and some opinions may simply be outside the expertise of even the most experienced officer. Second, in a different case there may be factors, not present in this case, that would require exclusion of some of an investigating officer’s evidence.[^2] Finally, while I have held that there is no legal basis for excluding the officer's opinion in this case, I should also not be taken as encouraging counsel to use this type of evidence. It is in the interest of the parties and the administration of justice that the foundation facts for the expert opinions be presented in as objective a manner as possible. The investigating officer who is at the scene will have valuable information to provide to the court and to the experts retained by the parties. The officer's objectivity should not appear to have been compromised because he or she has been enlisted by one of the parties to also provide expert evidence. This will benefit no one in the long term.

[27] It remains to consider the effect of the exclusion of the officer’s opinion. Constable Thomas did describe himself as “an accident investigator, accident reconstructionist” when testifying before the jury. He gave extensive evidence of his observations, including the disturbance of the snow bank, the zigzag marks and the gouge mark in the southbound lane. Having heard the evidence of the highly qualified defence expert based upon the officer’s testimony, the jury could not have been in any doubt as to the officer’s opinion concerning the point of impact. Indeed, the trial judge took this for granted in the charge to the jury. He referred to the defence theory as the “police theory” and actually told the jury that the police report put the point of impact in the southbound lane. In my view, no substantial wrong or miscarriage of justice occurred because of the exclusion of the officer’s opinion.

The Charge to the Jury

[28] The trial judge’s references to the police report were unfortunate. Having ruled that the appellants could not introduce the report, the trial judge should not have discussed its contents with the jury. In the result, evidence that had been ruled inadmissible was placed before the jury. As well, the trial judge used the contents of the document, which he and not the jury had seen, to deprecate the evidence of Constable Thomas and challenge the defence assertion that he was an independent witness. The officer had no chance to explain the contents of the report. The evidence of Constable Thomas was important to the defence. That evidence was largely the basis for their expert’s opinion that the collision occurred in the southbound lane. The appellants also point to the verdict in which the jury referred to the “original police report” as evidence that the improper aspects of the charge obviously had an impact on the jury.

[29] I have nevertheless concluded that these errors did not result in any substantial wrong or miscarriage of justice. The defects that the trial judge pointed to in the police accident report were the same defects in the police officer’s notes upon which the officer was vigorously cross-examined. Some of the explanation that the officer might have had for the defective report was before the jury in his answers concerning the notes. The reference to the police report was not entirely detrimental to the defence. As I have indicated above, the trial judge also told the jury that the report contained the officer’s opinion that the point of impact was in the southbound land. That may be why trial counsel, while objecting to the charge, was somewhat lukewarm on the question of a recharge. As he said, the trial judge might determine that it was best to “let sleeping dogs lie”.

[30] I do not consider the reference to the officer having seen Mr. Prescott’s report to be reversible error. The respondent alleged that this was a reasonable inference, given the shift in Constable Thomas’ evidence from what was in his notes. The trial judge had made it clear to the jury that they had a duty to disregard his opinion if they disagreed with it and to come to their own opinion in accordance with the facts.

[31] Finally, I do not believe that the reference to the police report in the verdict shows that the jury was influenced by the improper parts of the trial judge’s charge. For convenience I will repeat their answer to the question of the particulars of Mr. Sawh’s negligence:

Considering the damage to the vehicle, consistent portions of the statements by each side and the original police report, we believe the defendant’s not paying attention to the road or oncoming traffic had collided with the plaintiff in the northbound lane. [Emphasis added.]

[32] I have already referred to some of the problems with Mr. Sawh’s evidence. Fundamental was his admission to Constable Thomas that he was not paying attention. In cross-examination, counsel for the respondent had Constable Thomas read out Mr. Sawh’s entire statement as follows:

A. "Then what happened it happened so fast. I saw the other driver. He was coming north. He crossed the line. I had my mind on the job. I wasn't paying attention to traffic northbound." Question: "What time did your shift end?" Answer: "7 a.m." "Where were you going?" Answer: "I was going to 41 division with the tags." Question: "Did you see the truck northbound before you were hit?" Answer: "I saw headlights coming north. I didn't pay attention to them," ... [Emphasis added.]

[33] The jury picked up on this problem in their verdict. In context, it seems likely that the jury’s reference to the police report is to Mr. Sawh’s statement to the police officer, not the official accident report. I would therefore not give effect to this ground of appeal.

DISPOSITION

[34] Accordingly, I would dismiss the appeal with costs.

(signed) "M. Rosenberg J.A."

(signed) "I agree K. Feldman JA."

(signed) "I agree J. C. MacPherson J.A."

RELEASED: February 7, 2000

[^1]: While the trial judge ruled that the defence could not introduce the report in chief, this did not preclude the plaintiff’s counsel from cross-examining Constable Thomas on it, just as plaintiff’s counsel cross-examined the officer on his notes.

[^2]: For example, the officer’s opinion that one of the motorists had committed a criminal offence would, in most cases, be irrelevant.