DATE: 20011005 DOCKET: C32825
COURT OF APPEAL FOR ONTARIO
CHARRON, SHARPE and SIMMONS JJ.A.
BETWEEN:
Gregory Lafontaine,
HER MAJESTY THE QUEEN
for the appellant
Respondent
- and -
Thomas Galligan,
for the respondent
RALPH COLLINS
Appellant
Heard: April 9, 2001
On appeal from his conviction by Justice Lawrence W. Whalen, sitting with a jury, on June 16, 1999
CHARRON J.A.:
[1] Following his trial by judge and jury, the appellant was convicted of causing death by criminal negligence contrary to s. 220 of the Criminal Code, R.S.C. 1985, c. C.-46 arising out of the discharge of his firearm and the killing of seven-year-old Christopher Noel. The appellant was sentenced to four years and seven months' imprisonment. He appeals against conviction only.
- The evidence at trial
[2] The young victim, Christopher, was camping for the weekend by the side of Black Lake, also known as Spring Lake, in Northeastern Ontario, with his father, two siblings and the appellant who was a family friend. On Sunday, September 6, 1998, at around 5:00 p.m., the appellant discharged five rounds from his firearm into the lake. Christopher, who was sitting on a log, fishing by the side of the lake some 45 metres away, was hit by one of the bullets. He suffered a single gunshot wound to the left upper chest region. There was no dispute at trial that the bullet that hit Christopher was fired by the appellant.
[3] After the shooting, Christopher’s father immediately gathered his injured son and his two other children, and left in his truck to get assistance. The appellant stayed behind to put the fire out. Mr. Noel drove off frantically, stopped at the first house, but no one was home. He stopped at the second and asked the occupant to call 911 and have the ambulance meet him on the road. The ambulance did meet him and Christopher was brought to the hospital in Sault Ste. Marie where, after resuscitation attempts were made, he was pronounced dead.
[4] The Crown’s case against the appellant was based primarily on the evidence of Christopher’s nine-year-old sister, Cindy, who was by the lake with Christopher at the time of the shooting. She testified that she saw the appellant across the lake aiming his rifle at a small fish that her brother was holding at the end of his fishing line. She heard four shots and a “plop” caused by a bullet in the water. She then saw that her brother was bleeding from his neck area. Her father came rushing to her brother and yelled to the appellant that Christopher was bleeding. She heard the appellant say “I didn’t shoot that way”.
[5] Statements made by the appellant to various witnesses and to the police on the evening in question were also introduced in evidence by the Crown. Leah McCormick and her cousin, Stanley McCormick, testified that at about 6:50 p.m., they were returning in separate vehicles from Mr. McCormick’s camp, with Ms. McCormick driving ahead, when they saw the appellant come out of the bush, waving his arms. He asked for a ride to town and said that “a kid had cut his leg with an axe”.
[6] At about 7:30 p.m. that evening, the appellant arrived at the house of a friend, Alexander Doucette. He came in and said he was in trouble. He said he had shot a kid and didn’t know what to do, in particular whether to call a lawyer or the police. The appellant said that the child had been bleeding from the chest and mouth and that he didn’t know if he was alive. One occupant of the Doucette household heard the appellant say that he was target shooting in the water. Alexander Doucette then accompanied the appellant to the appellant’s home. There, the appellant said that he had been shooting out over the lake, that a bullet had ricocheted on a rock or something, and that he had not seen the children swimming in the water.
[7] At 8:13 p.m., the appellant called 911 and reported that he had fired off a gun, aiming out into the lake and “one of the bullets ricocheted, I guess out of the edge of the water, … and struck a little boy.”
[8] The appellant was arrested later that evening. On being told that the child was dead, he said:
what a way to ruin a camping trip, what do you tell the parents? What can you tell the parents? Just a fuckin’ freak accident, ricocheting like that. I was teaching the kids today how to use a firearm safely and this happens. The kids had no reason to be on the other side of the lake… I just tossed a twig in the water and started to sight the rifle in with a few shots when someone yelled “Christopher has been shot”.
[9] The Crown also relied on the evidence of Sergeant Jeffrey Barnes of the Ontario Provincial Police, who was qualified by the court as an expert in the handling and use of firearms, including the type used by the appellant. Sgt. Barnes gave evidence about an experiment that he and his fellow officers conducted at the site of the shooting on October 15, 1998. Sgt. Barnes set up a rifle on a tripod at the approximate location where the appellant would have been standing at the time of shooting. The appellant’s approximate location was determined according to witnesses’ statements and shell casings found at the scene. Using the rifle belonging to the appellant, Sgt. Barnes fired sixteen shots aiming in the water at various distances in front of the spot where Christopher was positioned All but one of the bullets struck a large target placed in the area where Christopher was sitting. One bullet missed the target entirely.
[10] A videotape of the experiment was played for the jury. It showed an unobstructed view from the location where the appellant had been standing to the location where Christopher was sitting on a log some 45 metres away.
[11] The appellant testified at trial. He stated that he threw a stick in the water as far as he could into the lake and then fired five rounds at the stick. He explained that he never saw the children on the side of the lake. When asked by his counsel whether he had any idea why he would not have seen Christopher, he answered “Cause I really wasn’t looking for him because I knew they weren’t… they weren’t supposed to be in that area”.
[12] The Crown did not allege that the appellant intended to shoot Christopher. It was the Crown’s theory at trial that the bullet hit the water in front of Christopher and ricocheted off the surface of the water, striking him. The Crown took the position that, in firing in the direction of the child, the appellant displayed a wanton and reckless disregard for the life or safety of the child, and consequently was guilty of criminal negligence causing death. The defence theory was that the appellant, entirely unaware of the presence of Christopher and his sister across the lake, was shooting at a stick in the water, and that Christopher was shot accidentally and not negligently.
- The issue on appeal
[13] The sole issue on this appeal relates to the admissibility of Sgt. Barnes’ testimony. Prior to its admission, the evidence of the simulated experiment was fully canvassed on a voir dire. The trial judge allowed the evidence, albeit in a restricted form. He held that the experiment was not of a scientific nature, nor was it unusual. Rather, it was in the nature of a reconstruction to demonstrate what happens when a gun is fired in the way described by Christopher’s sister. The trial judge was satisfied that Sgt. Barnes had the expertise required to carry out the experiment. Sgt. Barnes had expertise in the firing of firearms and related issues such as sighting, the ejection of cartridges and the general manner in which fired projectiles may act. He was also satisfied that the experiment evidence was relevant to the issues before the court and necessary for the jury to understand whether it was possible for bullets to ricochet off the water as alleged. The trial judge therefore concluded that the experiment evidence was admissible to show what happened when a gun was fired in a way suggested by one of the witnesses. He ruled, however, that Sgt. Barnes could only testify as to the experiment that was actually conducted and its results, but that he could not offer any opinion that went beyond the actual results of the experiment because he did not have the necessary expertise. The Crown on appeal does not take issue with this restriction. Hence, the trial judge would not allow the officer to suggest that, as a rule of physics or as a matter of science, in every case when one fires under particular circumstances the bullets will necessarily behave in a particular manner. Nor would he allow the officer to express any opinion on the safety of the act being simulated. It would be up to the jury to draw their own conclusions in that regard. Sgt. Barnes then testified as to the experiment in accordance with this ruling.
[14] The crux of the appellant’s submission is that the experiment evidence constituted expert opinion evidence and that, as such, it could only be admitted if it met the usual criteria for admissibility set out in R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C). Counsel for the appellant submits that Sgt. Barnes’ experiment evidence failed to meet these criteria. In particular, he submits that it was in the nature of “novel scientific evidence” and that, as such, it failed to meet the threshold standard of validity and reliability that is required to satisfy the criteria in Mohan. He also submits that Sgt. Barnes could not qualify as an expert to conduct this type of experiment since he had never performed an experiment of this kind before. Consequently, the appellant submits that the experiment evidence should not have been admitted at trial for any purpose.
[15] The respondent submits that the experiment evidence was not expert opinion evidence but, rather, that it was factual testimony, the admissibility of which is merely dependent on whether prejudice is outweighed by probative value. The respondent submits that the probative value of experiment evidence of this kind is determined by the degree of similarity between the conditions of the experiment and the actual event. This does not require identical conditions, but only that the degree of similarity be sufficient to ensure that the results of the experiment are probative. Any objection based on dissimilarity of some of the conditions goes to weight rather than admissibility.
- The law on the admissibility of experiment evidence
[16] Despite the fact that experiment evidence is often, and at times routinely, admitted at trials, there is a paucity of Canadian jurisprudence relating to this kind of evidence. Perhaps this is explained by the fact that experiment evidence often goes unrecognized for what it is: in some cases, it consists of mere factual evidence, much like any other sworn testimony; in other cases, it is a combination of factual and opinion evidence. In either situation, its admissibility is governed by well-established rules of evidence. Indeed, in my view, the key to determining the admissibility of experiment evidence is to keep in mind this distinction between fact and opinion as it is understood in the law of evidence. I will briefly review the applicable principles of law.
[17] In the law of evidence, an opinion means an “inference from observed fact”: see R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394 at 409. As stated in Abbey, as a general rule, witnesses testify only as to observed facts and it is then up to the trier of fact to draw inferences from those facts. A lay witness will be permitted to give an opinion only with respect to matters that do not require special knowledge and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts. A witness testifying that “a person was drunk” is a common example of an opinion that can be provided by a lay witness. See R. v. Graat (1982), 1982 CanLII 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.) for a review of the law on non-expert opinion. Otherwise, opinion evidence will only be received with respect to matters calling for special knowledge beyond that of the trier of fact. In those cases, an expert in the field may be permitted to provide the judge and jury with an opinion, that is “a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate” (Abbey at 409). The law as to expert opinion evidence was authoritatively restated in Mohan, supra. Before expert opinion evidence can be admitted, the evidence: (a) must be relevant to an issue in the case; (b) it must be necessary to assist the trier of fact; (c) it must not be subject to any other exclusionary rule; and (d) it must be given by a properly qualified expert.
[18] A witness’ testimony as to observed facts is, of course, subject to the general principles governing the admissibility of any evidence: relevance and materiality. Relevance is established at law if, as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced. The evidence is material if it is directed at a matter in issue in the case. [^1] Hence, evidence that is relevant to an issue in the case will generally be admitted. Indeed, it is a fundamental principle of our law of evidence that any information that has any tendency to prove a fact in issue should be admitted in evidence unless its exclusion is justified on some other grounds: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at 715; Morris v. R., 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190 at 201; and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at 609.
[19] The grounds that justify the exclusion of evidence that is otherwise relevant and material form the basis of many of our more specific rules of evidence. The rule against hearsay, the opinion rule and the similar fact rule are a few examples. Quite apart from these specific rules, evidence that is otherwise relevant and material may also be excluded by the exercise of the trial judge’s general power to safeguard the fairness of the proceedings. Our law of evidence recognizes the general power of a judge to exclude relevant and material evidence where its probative value is outweighed by the prejudice caused by its admission, provided that where the evidence is tendered by the defence, it should not be excluded on that basis unless the prejudice substantially outweighs the value of the evidence: see Seaboyer, supra, at 390; and R. v. S.C.B. (1997), 1997 CanLII 6319 (ON CA), 119 C.C.C. (3d) 530 at 541 (Ont. C.A.). Prejudice in this context does not mean, of course, that the evidence will be detrimental to the other party’s position. Rather, it is related to the detrimental effect that the evidence may have on the fairness and the integrity of the proceedings. For example, the evidence may not be worth receiving if its reliability is clearly outweighed by its potential to mislead or confuse the trier of fact. The evidence could also be excluded where its admission would involve an inordinate amount of time that is not commensurate with its value. See Mohan, supra, at 411.
[20] These general principles apply to experiment evidence. A pre-trial experiment can be as simple as driving from one location to another to determine the time it takes to cover the distance in order to substantiate or disprove an alibi, or driving along a particular stretch of road to determine at what point a stop sign becomes visible. The evidence in such cases, provided that it is relevant to an issue in the case, will usually be admitted without argument. It is entirely factual, and its admissibility is only subject to the general principles of relevance, materiality and discretion as discussed earlier. In other cases, the pre-trial experiment may be more complex, requiring particular technical or scientific knowledge to perform, and it may also form the basis of expert opinion evidence in the interpretation of the results. In such cases, the experiment evidence, in so far as the observed facts are concerned, will be subject to the usual principles of relevance, materiality and discretion but, in addition, to the extent that it includes inferences from observed facts, the opinion rule will come into play. In order to be admissible, that part of the experiment evidence that constitutes opinion evidence will have to meet the criteria in Mohan.
[21] In a nutshell, experiment evidence, if it is 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 outweighs its value. Beyond this, when the evidence requires the making of inferences from observed facts that require special knowledge, the test in Mohan will have to be met before the evidence can be admitted as expert opinion evidence.
[22] In most cases, the relevance of the experiment evidence will depend on the degree of similarity between the replication and the original event. Consider the example given earlier where the experiment consists of the driving along a particular stretch of road to determine at what point a stop sign becomes visible. If the distance at which the stop sign becomes visible is in issue at trial, the experiment evidence will be material, but will only be relevant if the replication bears some similarity to the original event. For example, if the original event occurred in the summer when vegetation partly obstructed the driver’s view but the experiment was conducted in winter after all the leaves had fallen, the relevance of the evidence will be greatly diminished. Depending on all the circumstances, it may not be worth receiving. Similarly, if the experiment evidence includes expert opinion evidence, variances between the replication and the original event, depending on their degree and importance, will affect the weight that can be given to the expert opinion evidence.
[23] As indicated earlier, there is a paucity of Canadian jurisprudence dealing specifically with experiment evidence. The admissibility of this kind of evidence, however, has been discussed in some cases, and the issue has generally been disposed of without much analysis but in a manner consonant with the principles that I have set out. I will briefly review some of the more relevant cases.
[24] In Kirkpatrick et al. v. Lament (1965), 1965 CanLII 631 (SCC), 51 D.L.R. (2d) 699 (S.C.C.), the plaintiff brought an action against defendant police officers for damages in respect of brain injuries that he suffered as a result of extensive force used by the officers in making an arrest. In support of his case, the plaintiff called a witness who testified as to hearing a ‘thud’ from over 100 feet away during the timeframe of the arrest. To contradict this witness, the defendants introduced evidence of an audibility experiment in which a hammer was pounded on the police station floor. The plaintiff objected to this evidence. On appeal to the Supreme Court of Canada, the Court held that the evidence was irrelevant to the issues at trial, but made the following brief comment about experiments in general at p. 709:
There is much, of course, to be said against that kind of evidence. It is absolutely impossible to duplicate all the elements affecting audibility on the night in question. But it would seem that that objection goes more to the weight of the evidence than to the admissibility….
[25] In R. v. Laverty (No. 2) (1979), 1979 CanLII 3010 (ON CA), 47 C.C.C. (2d) 60 (Ont. C.A.), the accused was convicted of arson. At trial, the Crown had relied on the evidence of a fire marshal who theorized that the fire had been started by the partial filling of a bathtub with flammable fluid and then igniting it. To test this theory, he had conducted a simulation in another bathtub, and then examined the blisters. He gave evidence of this simulation and its results before the jury. On appeal, the accused argued that such evidence should not have been admitted. In rejecting this ground of appeal, Zuber J.A. (at 62) relied on the following excerpt from McCormick’s Handbook of the Law of Evidence, 2nd ed. (1972), c. 20 at pp. 484-485:
Testing the truth of hypotheses by the use of controlled experiments is one of the key techniques of modern scientific method. The courts in their task of investigating facts make extensive use of this technique, but under conditions which prevent them from exploiting the process to the full limits of its usefulness. The legal doctrines relating to experimental evidence are simple and the principal task of the lawyer is to recognize the opportunities for their use, to seize these opportunities boldly, and when experiments are employed to plan them inventively and correctly, so that the results derived will be convincing to judge and jury. We are dealing here with experiments carried out before trial and presented at the trial through descriptions given by witnesses of the experiment and its results…
The opportunities are of limitless variety. Some of the types of experiments most frequently encountered are these: tests of the composition and properties of substances; testing firearms to show the patterns of powder and shot made upon the object at different distances; experiments by human beings in the holding of firearms to determine whether a given gunshot wound could have been self-inflicted; tests of the visibility of objects or persons at a given distance; tests of audibility and tests of the speed of locomotives and motor vehicles and of the effectiveness of their brakes and headlights.
[26] Zuber J.A. concluded that the test performed in the case under appeal was “well within the class of cases referred to in McCormick and well within the class of tests which have been customarily admitted in [Ontario courts]”.
[27] In R. v. Kelly, [1985] O.J. No. 237 (C.A.), the accused was convicted of first degree murder. At trial, the Crown relied on experiment evidence to contradict the appellant’s allegation that his wife had fallen from the balcony. On appeal, the accused argued that the experiment evidence was inadmissible, due to “incomplete information and inaccurate assumptions”. In rejecting this argument, MacKinnon A.C.J.O. stated at p. 2 (QL):
…the information used was substantially that given by the appellant and the tests were conducted in accordance with scientific methodology. There was no need for a deep knowledge of the laws of physics to question the statements of the accused that he saw his wife falling as he was running from the kitchen and still had time to cross the living-dining room and the balcony and catch her, only to have her slip from his grasp. However, it was within the jury’s province to weigh the evidence of the tests conducted and introduced by the Crown; the argument that the tests were based on incomplete information goes to its weight and not its admissibility.
[28] In R. v. Brooks (1998), 1998 CanLII 5686 (ON CA), 129 C.C.C. (3d) 227 (Ont. C.A.), an issue arose as to the cause of a red mark on a young victim of a homicide. It was the Crown’s theory at trial that the red mark was caused by a cigarette burn inflicted by the accused. It was the defence theory that the mark was caused when the victim fell on a red toy funnel in the bathtub. To disprove the accused’s allegation, the investigating officer performed a “crude experiment” with a funnel in his bathtub to determine how it would land in the water. At trial, the officer testified about the results of this experiment without objection. However, the admissibility of his evidence was contested on appeal. Laskin J.A., in writing for the court, stated as follows:
I agree that the results of Detective Sergeant Harild’s experiment should not have been admitted. He did not have the required scientific training to give this evidence and the evidence itself was of dubious relevance. See R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.). But the error was harmless for two reasons. First, the trial judge instructed the jury to ignore the evidence. … Second, the medical evidence at trial showed that the mark was likely caused by a cigarette burn. Indeed the medical evidence dismissed the possibility of a funnel having caused or aggravated the lesion. I would not give effect to this ground of appeal.
[29] A review of the transcript in Brooks reveals that the police officer’s testimony went beyond relating observed facts and included opinion evidence that would be subject to the criteria in Mohan as stated by the court. The police officer testified as follows:
What I did was, in light of the evidence where the injury had supposedly been sustained, seeing that this was the aggravating factor that could have caused the injury, what I did was I filled my tub up with different levels of water. When there was two inches of water in the tub, I would just randomly throw this toy in, flipping it and also that there was no, no consistency in the way it was introduced into the water, and out of the 25 times that I threw it, 24 times it landed like this with the funnel up, because basically this part of the funnel is so heavy that it’s sitting on the water and physics dictates that the heaviest then will end up on the bottom. [Emphasis added.]
[30] In R. v. Gillese (1993), 1993 CanLII 898 (BC CA), 27 B.C.A.C. 69 (C.A.), the appellant successfully adduced experiment evidence by way of fresh evidence on his appeal from his second degree murder conviction. The appellant maintained at trial that he had shot away from the victim not intending to kill him. The fresh evidence consisted of an experiment conducted by a retired R.C.M.P officer, in which the circumstances of the shooting were simulated. The Crown argued that the evidence was not of sufficient probative value, because it amounted to a speculative experiment with no scientific evidence. The British Columbia Court of Appeal rejected this argument, admitted the evidence and ordered a new trial stating, at 73:
In the result, I am satisfied that the appellant has met each of the tests required by [R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1S.C.R. 759]. As I have already indicated, the fresh evidence is capable of raising a reasonable doubt whether [the appellant] shot directly at [the victim] and a reasonable doubt whether the facts themselves prove that he did. If accepted, and I do not think we can make that determination, the consequence would be a verdict of manslaughter, not second degree murder.
[31] In Toronto Helicopters Ltd. v. Intercity Ford Ltd. (1995), 18 M.V.R. (3d) 203 (Ont. Gen. Div.), a case arising out of a collision between the defendant’s tractor and the plaintiff’s helicopter, the plaintiff proposed to call evidence about stopping distances achieved in conditions that replicated the accident. The defendant objected to this experiment evidence on the ground that it constituted expert opinion evidence, and that proper notice had not been given pursuant to Rule 53.03 of the Ontario Rules of Civil Procedure. On a motion to exclude the evidence, the motions judge ruled that the evidence was admissible. Relying on various American texts, the motions judge held that the evidence was neither scientific evidence nor expert opinion evidence. Rather, it was plain, factual testimony.
[32] In R. v. Subhani, [1998] O.J. No. 1623 (Gen. Div.), the accused appealed from his conviction of the dangerous operation of a motor vehicle involving a high-speed night chase. At trial, the only live issue was the identity of the driver. To rebut the eyewitness identification evidence, the defence sought to adduce expert opinion evidence, based on a series of experiments at a traffic intersection, that it would have been impossible for the eye witnesses to make out the facial features of the driver on the night in question. The trial judge concluded that the expert’s testimony was of limited value due to a failure to precisely replicate the circumstances of the original night. On appeal, the appellant argued that the expert opinion was improperly rejected. Hill J., sitting as a summary conviction appeal court judge, disagreed, finding that the expert’s opinion was properly rejected because the subject-matter of his testimony was outside his area of expertise. Hill J. also made the following useful comment with respect to the assessment of this kind of evidence (at paras. 62-63):
Where an expert witness purports to express opinion evidence founded on an experiment or recreation of events, the opinion will have probative value, more or less, depending on the integrity of the purported replication. As in the instance of a hypothetical question posed to an expert witness, variances from the established facts of the original event(s), may, depending on materiality and degree of departure, substantially diminish the weight which can reasonably be afforded the expert’s evidence. In an extreme case, admissibility itself may be jeopardized.
While no experiment or recreation can, as a general rule, exactly duplicate history, a lack of faithfulness to relevant and proven facts justifies caution by the trier-of-fact.
[33] R. v. Meads, [1996] Crim. L.R. 519 (C.A.) is one example of an English case where the distinction between factual testimony and expert opinion testimony is clearly made. Indeed, the ruling of the Court of Appeal in Meads is similar to the ruling made by the trial judge in this case. In Meads, the appellant was convicted of offences arising out of an armed robbery. The principal evidence against him consisted of admissions and confessions allegedly made by him to the police during interviews. On appeal, the appellant sought to adduce fresh evidence by forensic experts to show that the handwritten notes of the disputed interviews could not have been made in the time claimed by the interviewing officers. The prosecution argued against the admission of this evidence on the basis that the witness had insufficient experience to perform the tests. In admitting the fresh evidence, the Court of Appeal was reported to have ruled as follows (at 520):
…the evidence was admissible provided that it was confined to tests performed by the two experts and the results of those tests. It was not opinion evidence any more than the evidence of a police officer who gave evidence of timing a given journey in order to test an alibi. The inference from such evidence – certain interviews having been apparently read back almost at the speed of a horse racing commentary – could be properly drawn by a jury.
- Application to this case
[34] In my view, the appellant’s characterization of Sgt. Barnes’ experiment testimony as expert opinion evidence in the nature of “novel scientific evidence” is misconceived. In describing how projectiles acted when a rifle was shot in a certain way, the witness was not advancing any novel scientific proposition. Indeed the trial judge was correct in finding that this kind of evidence was neither scientific nor unusual. The appellant’s argument also fails to recognize the fundamental distinction between fact and opinion. Although Sgt. Barnes was qualified as an expert in the handling and use of firearms, it does not follow from that fact that his testimony necessarily constitutes opinion evidence: see R. v. K.(A.) (1999), 1999 CanLII 3793 (ON CA), 137 C.C.C. (3d) 225 at paras. 71-72 (Ont. C.A.).
[35] The gist of Sgt. Barnes’ testimony was as follows. First, he described how the experiment was set up. He testified that, on October 15, 1998, he and his fellow attended the scene where the shooting had taken place. A target array was placed at the location where the young victim was alleged to have been when he was shot. The appellant’s own rifle was placed on a tripod across the pond at the location where the officers believed the appellant was standing at the time he fired the shots. This location was determined from information received from witnesses and from the shell casings found at the scene. Markings were placed at several distances in the water. Sgt. Barnes determined the site alignment of the appellant’s rifle. Second, Sgt. Barnes described how the experiment was carried out. He described in detail how and where 16 shots were fired at the targeted markings in the water and further described how 15 of the 16 bullets hit the target across the pond.
[36] The experiment evidence was rather simple and easy to understand. To the extent that any expertise in the use and handling of firearms may have been required in actually setting up the experiment and carrying it out, the evidence is clear that Sgt. Barnes had the necessary qualifications and the trial judge was correct in recognizing his expertise in that field. However, the gist of Sgt. Barnes’ testimony did not require any particular expertise; it simply consisted of his observations when the sixteen shots were fired into the lake. A review of the transcript reveals that his testimony, save for one exception to which I will refer later, was restricted to giving an eyewitness account of the experiment and its results. Even when asked by the Crown to give his “conclusions” based on the experiment, his testimony was restricted to a factual account. His answer was the following:
On the particular day under the parameters we had set for that particular test, that when we fired rounds into the water in alignment with the target and if they struck the water approximately 7.5 meters in front of the target array, we produced bullet strikes in close proximity to that proportion of the target.
[37] Hence, the essence of Sgt. Barnes’ testimony was factual in nature and not subject to the general exclusionary rule with respect to opinion evidence. As discussed earlier, its admissibility was merely dependant on its relevance and materiality, subject to the trial judge’s general power to exclude the evidence on the basis of prejudice.
[38] In my view, the evidence was relevant and material. It is beyond dispute that the question whether a bullet could ricochet off the water as alleged was an issue at trial. Indeed, it was an important issue - the trial judge held that it was necessary for this jury to understand whether it was possible for bullets to ricochet off the water. It is also beyond question that the experiment evidence was relevant to this issue. Hence the experiment evidence was clearly material, relevant and therefore admissible unless it can be shown that the trial judge erred in failing to exercise his general discretion to exclude the evidence on the basis of prejudice.
[39] In my view, the appellant has not shown any prejudice that would justify the exclusion of the evidence. I see no merit to the contention that the jury would not be able to properly interpret the results of the experiment without expert opinion evidence. The evidence was introduced simply to show how bullets can ricochet off water. It was entirely open to the jury to draw their own inferences on this issue from the results of the experiment.
[40] The only aspect of Sgt. Barnes’ testimony that went beyond mere factual observations relates to his statement that he didn’t believe the results of the experiment would be different if fifty or a hundred more shots had been fired in the same manner. The appellant takes particular issue with this aspect of Sgt. Barnes’ testimony. The appellant is correct in stating that, in giving this answer, Sgt. Barnes’ testimony expressed an opinion that went beyond the actual results of the experiment in contravention of the trial judge’s express ruling. However, it is noteworthy that the impugned testimony was given in answer to a few discrete leading questions put to the witness by defence counsel in cross-examination – questions that defence counsel, who is not counsel on appeal, was previously cautioned by the trial judge against asking. I reproduce here the impugned testimony:
Q. And, you know, you’ve only taken sixteen shots here, right? Did you think that was appropriate?
A. From when we shot, again, we had no idea what the consistency was going to be, but we did produce the bullet strikes when we arranged it at seven and a half meters and as we moved over, we aligned with the next set of targets, the shots generally went in alignment with them. I felt that that was appropriate under the circumstance with what we were firing. To continue the shots, I felt at that time would just duplicate the results we had already observed.
Q. Don’t you think it would be better maybe to take every... like every five meters and seven and a half and ten and fifteen or whatever, maybe fifty shots?
A. Perhaps fifty shots. Perhaps a hundred shots. Would the data repeat itself?
Q. Wouldn’t that give us a better idea of the array that would form on that…
A. I don’t believe so. [Emphasis added.]
[41] Even though Sgt. Barnes’ answer to counsel’s query went beyond the scope of admissibility as circumscribed by the trial judge’s ruling, I would not give effect to this ground of appeal for the following reasons.
[42] First, the impugned testimony was adduced as a result of questions by counsel for the appellant that specifically called for opinion evidence. Presumably, the questions were asked in a bona fide attempt to attack the witness’ evidence. This court should not look behind trial counsel’s tactical decisions save only to prevent a miscarriage of justice: R. v. B. (G.D.) (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 299 (S.C.C.). The impugned testimony did not occasion any miscarriage of justice. When considered in the context of the witness’ entire testimony which, in all other respects, was properly admitted, and in the further context of the other evidence at trial, it could not reasonably have affected the verdict.
[43] Second, the jury would have clearly understood from the trial judge’s instructions that Sgt. Barnes’ testimony, as the rest of the evidence, should be critically assessed, and that it was up to them to decide what weight, if any, should be attached to it in arriving at their verdict. In his instructions to the jury, the trial judge referred to Sgt. Barnes as an expert witness. As Sgt. Barnes was qualified as having sufficient expertise to conduct the experiment, he was, in that limited sense, an expert witness. However, as Sgt. Barnes had been properly precluded by the trial judge’s ruling from offering any opinion that went beyond the actual results of the experiment, it would have been preferable if Sgt. Barnes’ testimony had not been generally identified as expert testimony. In the end, his evidence was factual in nature and the appellant was not prejudiced by the trial judge’s reference to Sgt. Barnes as an expert witness. It is noteworthy that there was no suggestion in the trial judge’s instructions that the results of the experiment were scientific in nature or worthy of any greater consideration than the other evidence adduced at trial. Rather, the trial judge gave thorough instructions on how to assess the credibility of witnesses, including a specific caution against finding the testimony of police witnesses more worthy of belief simply because they may appear more comfortable in giving their testimony. The instructions on credibility were immediately followed by detailed instructions on how to critically assess expert opinion evidence, including the necessity to assess the factual basis for any opinion. Sgt. Barnes’ testimony was specifically referred to as an example to illustrate this latter instruction; however, the reference to the witness’ expertise was confined to the replication of the conditions of the shooting and was not in any way related to the results of the experiment.
[44] For these reasons, it is my view that the trial judge was correct in ruling that the experiment evidence was admissible. Sgt. Barnes’ testimony substantially conformed to the trial judge’s ruling, and I would therefore not give effect to this ground of appeal.
[45] For the sake of completeness, I find it important to note that part of the trial judge’s instructions on expert evidence was incorrect. After giving very thorough and helpful instructions on the assessment of expert opinion evidence, the trial judge concluded that part of his charge with the following:
In the final analysis, it is for you to determine what expert evidence you accept (if any), and what weight you wish to attach to it. As I have said before, you are the sole judges of the facts and in determining what the facts are, you may believe all or none or only part of the evidence of a witness. The same principle applies to the expert witness who may have testified. Be cautious before rejecting an expert's professional opinion, but keep in mind that it is open for you to do so. Also keep in mind, that 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.
[46] While it is conceivable that the latter part of this instruction could have some valid application to a particular fact situation, it is incorrect as a general principle of law and should not be routinely given. There is no basis at law for differentiating between Crown and defence expert opinion evidence when it comes to assessing the evidentiary foundation for the opinion. In either case, the more the expert relies on facts not proved in evidence, the less weight the jury may attribute to the opinion. The corollary is also true: the more the expert fails to consider relevant facts, the less weight the jury may attribute to the opinion. These principles apply in the same way whether the expert opinion favours the Crown or the defence. See R. v. Abbey, supra; R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852; and more recently, R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674 at para. 22 where the court reviewed the correctness of jury instructions in relation to a defence expert and did so solely in terms of these principles.
- Disposition
[47] For these reasons, I would dismiss the appeal.
(signed) “Louise Charron J.A.”
(signed) “I agree Robert J. Sharpe J.A.”
RELEASED: October 5, 2001
SIMMONS J.A. (concurring):
[48] I have read the reasons of my colleague, Charron J.A. Although I agree with much of her analysis of the nature and general principles of admissibility of the experiment evidence presented by the Crown, with respect, I differ on two points.
[49] First, it is my view that the experiment evidence presented by the Crown did in fact create a risk of prejudice to the appellant, namely, that the jury would use the evidence to conclude that alternate theories of causation had been excluded by the experiment, when that was not the case.
[50] Second, it is my view that where, as here, there are, or may be, conflicting versions of how a particular incident transpired, and an experiment is conducted to demonstrate the plausibility of one of those versions, it is desirable that the jury be cautioned about the inferences it can draw from the evidence of the experiment.
[51] Ultimately, however I share my colleague’s conclusion that the experiment evidence was admissible. In my view, it has not been demonstrated that the probative value of the experiment evidence was outweighed by the risk of prejudice to the appellant. I will accordingly attempt to explain my reasons in a very brief form.
The Experiment that was Conducted
[52] On the voir dire concerning admissibility of the experiment evidence, Sergeant Barnes testified that the purpose of conducting the experiment was “to set up a shooting protocol to fire rounds across the body of water, skipping them off the water, and attempting to produce strikes on the target array that we had built [emphasis added]”. During the trial he explained that he did not know in advance whether he could hit the target with any degree of certainty. He said “I felt confident at that time that we could skip the bullets off the water, but I didn’t know how random the event would be”.
[53] Nine individual targets were stacked in three horizontal rows to form a “target array” for use in the experiment. The centre target in the bottom row represented Christopher’s position when he was shot.
[54] Sergeant Barnes explained that he placed Mr. Collins’ rifle on a tripod in order to stabilize the shooting platform “so there’s no variables in that it was wobbling around or you have a wobble area as a result of holding it free standing”. Of the sixteen shots that were recorded, the first ten were fired with the rifle aimed at the target representing Christopher’s position [^2] . Bullets were fired so they would strike the water at varying intervals in front of the target array.
[55] Shots one through three were aimed at a point five metres in front of the target array using a muzzle angle of 2.5 degrees; shots four through seven were aimed at a point ten metres in front of the target array using a muzzle angle of 4.0 degrees; and shots seven through ten were aimed at a point approximately seven and one half metres in front of the target array using a muzzle angle of 3.0 degrees. Although the original plan was to space the shots at five metre intervals, Sergeant Barnes selected the seven and one half metre point of aim when it appeared that shots fired at a point five metres in front of the target array were impacting too low on the target array, whereas shots fired at a point ten metres in front of the target array were impacting too high.
[56] Shots eleven through sixteen were taken with the rifle aimed at the bottom target on the left side of the target array. The bearing to the target was three degrees left of the bearing used for the first ten shots.
[57] Shots eleven through thirteen were aimed at a point fifteen metres in front of the target array using a muzzle angle of 5.0 degrees, whereas shots fourteen through sixteen were aimed at a point ten metres in front of the target array using a muzzle angle of 4.0 degrees.
[58] When asked why he changed the aim to the left side of the target array, Sergeant Barnes said he had produced strikes in the centre of the array and he wanted to see what would happen if he aimed to the side, to see “if the results were consistent, whether [the bullets] would strike the outer target or whether [the bullets would] move to the inside target…” He found that when the rifle was aimed left, the rounds tended to stay on that side of the array. Shot sixteen missed the target array altogether.
[59] When asked in-chief on the voir dire, about the results of the test firing, Sergeant Barnes’ comments included the following:
Well, going into it, we weren’t sure exactly what the results were going to be. Quite frankly, I didn’t know how the bullets were going to react with the impact with water and what it would do to the trajectory. After having fired the shots, however, it became readily apparent, like to produce a bullet strike on one of these targets where they were placed and the level they were above the water, that I had to line the rifle up with the particular target to produce a bullet strike on that particular target. When I changed to the outside targets and I stopped shooting on the centre line of the… of the middle targets, the bullet strikes as soon as I changed the bearing of the rifle to those outside targets, the bullet strikes starting appearing there, so it became readily apparent that to strike any one of those targets, that the rifle had to be lined up with that particular target to produce the strike. [emphasis added]
The only way to…for us under the conditions that we did the test firing under, to produce a bullet strike on a specific target such as the centre, middle, white target is that I had to line the rifle up with that target so it was in line with it as I struck the water with the bullet. In answer to His Honour’s question it wasn’t exactly in line, there was some variance, they did pull left, they did pull right, some went slightly higher, some went slightly lower, obviously …because they’ve struck off the water, but it was consistent in that to produce a bullet strike on that target, I had to be in line with the target to do so.
The Crown’s Application for Admission of the Evidence
[60] The Crown applied to have Sergeant Barnes qualified as an expert in the shooting of firearms and for permission to have him adduce evidence about the experiment he conducted. The Crown also requested that Sergeant Barnes be permitted to proffer his opinion that one had to be in line with the centre target in order to hit it by ricocheting bullets off of the water. As a fall back position, the Crown sought permission to have Sergeant Barnes give evidence about his experiment, including a videotape of the experiment and a chart detailing the shot number, range distance, approximate point of impact on the water, point of impact on the target array, muzzle angle and bearing to the target with respect to each shot recorded, without proffering his conclusion.
[61] Defence counsel objected to the admissibility of the evidence on the basis that it amounted to a scientific experiment that Sergeant Barnes was not qualified to conduct. In particular, he objected to the use of the experiment to demonstrate that Mr. Collins must have been aiming at the child.
The Trial Judge’s Ruling
[62] As noted by my colleague, the trial judge found the evidence about the experiment necessary to assist the jury in understanding whether it was possible for bullets to ricochet off of water. He restricted Sergeant Barnes from expressing the opinion that a shot would necessarily hit the target every time if the rifle was aligned with the target, but aimed to ricochet off of the water. However, the trial judge did permit Sergeant Barnes to make the observation that he was aligned with the target when he shot. He also ruled that it would be permissible for the Crown to invite the jury to find, based on the experiment evidence, that it was not likely that a shot fired in another direction could ricochet off of the water so as to hit the target.
[63] In an addendum to his ruling, the trial judge said the following:
Sergeant Barnes was not presented as, and is not, a scientist in the sense of being able to explain his test results in terms of the science of physics or any other formal science. He cannot offer scientific opinion in that sense which explains how the projectiles behaved in flight or on impact, ricochet or otherwise, nor can he predict in such scientific terms how the projectiles might behave if any of the components of the test are varied. … he can comment on the flight of the bullets he fired, of the bullets he fired from and to the particular location within the ranges of distance and muzzle angles tested, however, he cannot and should not comment on what would happen outside of those tested parameters. So, for example, he cannot say what would happen if the gun were fired from a position a foot or two higher, or a yard or two back, or to either side, or with differing angles than those tested. These variations were not tested to offer opinions about what would or would be likely to occur outside of the parameters of the test that was actually conducted would be unwarranted and dangerous and I think the Crown should be very cautious in keeping the witness within those parameters. If the evidence at trial offers variations of the components that form the planned basis of the tests, then the Jury will have to decide how to deal with it and I will instruct them on how they may use the evidence.
The Evidence Concerning the Direction from which the Shots were Fired
[64] Cindy was quite clear in her evidence that when Mr. Collins fired his rifle he was aiming at a small fish at the end of Christopher’s fishing line.
[65] Mr. Collins’ out-of-court statements, which were adduced as evidence at trial, contain no clear indication of where he was aiming when he fired his rifle. His testimony at trial appears to indicate he was not aiming in Christopher’s general direction. This conclusion is supported by the trial judge’s charge in which he said:
There is contradictory evidence in this case on how the shooting occurred and some of its surrounding events. Mr. Collins has given you an explanation or version of the facts contradictory to that of Ronald and Cindy Noel. By his version of the facts, the children were not apparent because they had departed with their father to another area, and if they were there, they could not be seen. Therefore, by Mr. Collins’s account, when he fired his gun he reasonably believed no one was in the area, and no one could be seen, and in any event he fired at a target that was not near the children and he could not have known that a bullet would ricochet as it did. [Emphasis added.]
Analysis
[66] I agree in general terms with the conclusion that the experiment evidence was relevant and necessary to assist the jury in understanding that it was plausible that a bullet could hit a target after ricocheting off of water, when fired from a rifle aimed generally at the target. Moreover, the experiment evidence, as a whole, gave rise to an available conclusion that bullets ricocheting off of water generally follow a consistent trajectory to the target when fired from a rifle aimed at one of the four muzzle angles used in the experiment. There is nothing potentially prejudicial in these available inferences that would justify the exclusion of otherwise relevant evidence.
[67] It is, however, noteworthy that the relevance of the experiment evidence lies in its demonstrated results. The trial judge found that Sergeant Barnes did not possess the expertise to explain how the bullets behaved nor to predict what would happen if any of the testing variables were changed. He accordingly restricted Sergeant Barnes from expressing any opinion about those matters.
[68] In my view, a similar caution was desirable to warn the jury that the experiment evidence could not support conclusions concerning the outcome of undemonstrated changes in the testing variables. There was an inherent risk that the jury would erroneously conclude that by demonstrating the plausibility, and even likelihood, of an event based on one theory of causation, the experiment evidence effectively excluded other theories of causation. That risk was heightened by the fact that Sergeant Barnes was qualified as an “expert” to give evidence that did not require expertise. The nature of the experiment evidence itself further increased this risk.
[69] It is useful to analyze the experiment evidence as consisting of two distinct parts in order to determine whether it created any risk of prejudice to the appellant.
[70] In the first part of the experiment, namely shots one through ten, Sergeant Barnes aligned his rifle with the specific target that was intended to approximate Christopher’s position, and, using three different muzzle angles, attempted to replicate Cindy’s account of the incident, by skipping bullets off of the water at varying distances in front of the target in order to hit it.
[71] In the second part of the experiment, namely shots eleven through sixteen, Sergeant Barnes changed the rifle alignment so that it was pointing at the left side of the target array, away from Christopher’s position. He used two muzzle angles, one that he had not used in the first part of the experiment and one that he had, and again attempted to skip bullets off of the water at varying distances in front of the target, this time in order to see what would occur.
[72] The key distinction between the two parts of the experiment is that shots one through ten were confined to being an attempt to replicate Cindy’s version of the incident, while shots eleven through sixteen were not.
[73] Like the shots fired during the first part of the experiment, shots eleven through sixteen demonstrated, with one exception, that bullets ricocheting off of water generally follow a consistent trajectory to the target when fired at the selected muzzle angles. However, because the rifle alignment was changed in the second part of the experiment, shots eleven through sixteen also provided a graphic demonstration of an available conclusion that one had to aim at the target intended to approximate Christopher’s position in order to hit it, when using the selected muzzle angles.
[74] In and of itself, this specific conclusion, predicated on the use of the selected muzzle angles, creates no risk of prejudice to the appellant. Albeit potentially harmful to the appellant’s position, it is an actual demonstrated result.
[75] In my view however, there is a risk of prejudice to the appellant that arises from the evidence of the second part of the experiment, namely that the jury would draw the more general conclusion stated by Sergeant Barnes on the voir dire, that one had to be aligned with the target in order to hit it, when that conclusion had not been demonstrated. The evidence that the bullet trajectory remained consistent even though the rifle alignment was changed suggests the conclusion that one had to be aligned with the target in order to hit it. Although Sergeant Barnes was not permitted to express his conclusion in the presence of the jury, the fact that he, a person qualified as an expert in the handling, operation and firing of guns, drew it, demonstrates a real risk that the evidence would suggest the same conclusion to the jury.
[76] Sergeant Barnes did not design an experiment that was capable of excluding alternate versions of causation. He did not, for example, attempt to determine the spectrum of muzzle angles that would produce a ricochet, nor did he attempt to test whether bullets fired from a rifle using muzzle angles in every range of that spectrum behave in the same fashion. In other words, he did not attempt to test whether the trajectory of bullets ricocheting off of water remains consistent through the range of muzzle angles that will produce a ricochet.
[77] Although Sergeant Barnes varied one muzzle angle in the second part of the experiment, one change to the muzzle angle, without knowing the range of muzzle angles that could produce a ricochet, is of no particular significance in proving the conclusion he stated on the voir dire. Absent a more complete experiment, or assistance from an expert, the accuracy of the general conclusion that one has to be aligned with a target in order to hit it by skipping bullets off of water remains to be seen. This is not to say the conclusion is inaccurate, merely that its accuracy was not demonstrated by the experiment that was conducted.
[78] Although I consider that the evidence concerning the second part of the experiment, in particular, created a risk of prejudice to the appellant, it has not been demonstrated that that risk outweighed the probative value of the evidence. I reach this conclusion for three reasons.
[79] First, there was significant additional probative value to the evidence of the second part of the experiment. That evidence demonstrated graphically that bullets fired from a rifle, aimed away from Christopher’s position using any of the muzzle angles tested during the experiment, generally would not hit it.
[80] Second, the evidence of the first part of the experiment significantly reduced the air of reality to be afforded to any alternate version of causation raised by Mr. Collins’ evidence in any event. That evidence not only confirmed the plausibility of Cindy’s version of the incident; it increased the probability that it happened in the manner she described. Mr. Collins’ account of the incident was unclear to begin with. The evidence of the first part of the experiment diminished the prospect that it would be afforded any weight.
[81] Third, Sergeant Barnes was not permitted to express the conclusion he reached and counsel did not invite the erroneous inference.
[82] Although it has not been demonstrated that the risk of prejudice arising from the evidence of the second part of the experiment outweighed its probative value, Sergeant Barnes’ conclusion, as stated on the voir dire, that one had to be aligned with the target in order to hit it, in and of itself, demonstrates the desirability of cautioning the jury that the evidence of the experiment could not exclude alternate versions of causation. In fairness to the trial judge however, he was never asked to give such an instruction, let alone to weigh the risk of prejudice of the second part of the experiment against its probative value.
[83] For these reasons, I too, would dismiss the appeal.
(signed) “J. Simmons J.A.”
[^1]: Relevance and materiality are often referred to simply as “relevance” and the connection to an issue in the case, i.e. its materiality, is simply subsumed in the notion of relevance.
[^2]: Sergeant Barnes had determined in a preliminary test that the rifle sights were not in precise alignment and that the rifle was shooting approximately 6.65 centimetres right and 8.4 centimetres high.