DATE: 20040513 DOCKET: C37337

COURT OF APPEAL FOR ONTARIO

DOHERTY, LASKIN and ROSENBERG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

• and -

JAMES COULTICE AND SCOTT TARPEY

Respondents

David Lepofsky for the appellant

W.E.M. Naylor and Rocco Galati for the respondent, Coultice

Scott Tarpey In person

HEARD: January 21, 2004

On appeal from acquittals returned on October 31, 2001 by a jury presided over by Justice B. Glass of the Superior Court of Justice.

DOHERTY J.A.:

Overview

[1] A jury acquitted the respondents of criminal negligence causing death. The charges arose out of the death of ten year old Elizabeth Harder who suffered fatal head injuries after a fall from a horse during a trail ride. The respondent, James Coultice (“Coultice”) was the owner of the trail ride operation. The respondent, Scott Tarpey (“Tarpey”) worked for Coultice and was in charge of the trail ride that ended with Elizabeth’s death.

[2] The Crown appealed from the acquittals alleging that the trial judge erred in law in excluding evidence of three prior incidents involving the horse that Elizabeth was riding on the day she died, and in excluding expert evidence as to the manner in which to safely operate trail rides, especially those involving novice riders.

[3] I would dismiss the appeal. The trial judge erred in excluding the evidence of one of the three prior incidents involving the same horse, and he erred in excluding the entirety of the evidence of two of the Crown experts. The Crown has not, however, satisfied me to a reasonable degree of certainty that the result would not necessarily have been the same had those errors not occurred.

The Evidence at Trial

[4] Elizabeth went horseback riding at Coultice’s Wagon Wheel Ranch with a group of children celebrating a friend’s birthday on April 17, 1998. Elizabeth had been on a horse once before in her life. She rode a horse called Nevada and had no difficulties during the ride.

[5] Elizabeth had so much fun riding Nevada that she asked her parents to take her back to the ranch the next day. She returned with her parents and her brother and sister anxious to take another ride on Nevada. Paul Harder, Elizabeth’s father, spoke to Coultice when he was paying for the rides and told him that his children were all inexperienced riders. Elizabeth asked Coultice if she could ride Nevada. Coultice said that Nevada was a popular horse who was very gentle with children.

[6] Elizabeth was put on Nevada and Tarpey adjusted the saddle and stirrups. She was wearing running shoes with no heels and was not wearing a helmet. No one suggested to Elizabeth’s parents that she should wear a helmet and heeled shoes. Elizabeth sat on Nevada for about ten minutes before a group of 15 to 20 riders left the stable area and headed out on the trail. Before the group left, there were brief instructions on how to steer and stop the horses. Tarpey was the only paid employee and trail guide on the ride. Five or six other experienced riders served as volunteer guides.

[7] The trail ride followed an established route. The horses went up a hill, through a wooded area to an open field. Usually, the horses went in single file up the hill and through the wooded area. The horses were allowed to gallop in the open field. After a brief rest, they were led up another hill and down the hill to the barn and stable area. Changes in pace during the ride were signalled by Tarpey.

[8] Andrea Ladner, an experienced rider, was on the trail ride with Elizabeth. During the ride, Ms. Ladner heard Elizabeth cry out. She turned and saw Elizabeth and Nevada approaching her at a fast trot. Elizabeth was holding the reins loosely and did not seem to have control of Nevada. Ms. Ladner rode beside Elizabeth, spoke to her and attempted to comfort her. Ms. Ladner did not see Tarpey approach Elizabeth, say anything to her or do anything to address the problems that Elizabeth was apparently having with Nevada. According to Ms. Ladner, Nevada was fidgety and upset the horse in front of him.

[9] Shortly after Ms. Ladner spoke to Elizabeth, the group, including Elizabeth, approached the top of the final hill leading down to the stable area. At the top of the hill, Nevada bolted past the rest of the group. There was some evidence that a dog was seen running very near the group of horses when Nevada bolted and started down the hill.

[10] Nevada galloped down the hill towards the stable. Coultice saw Nevada coming and yelled at Elizabeth to hang on. Elizabeth’s parents saw the horse gallop by, recognized that Elizabeth was the rider and gave chase. Nevada made a sharp turn and Elizabeth fell off to the left side of the horse. As Elizabeth fell from the horse, her foot caught in the stirrup. Nevada dragged her for hundreds of feet. Elizabeth struggled to free her foot until her head hit a stump or a rock. She stopped moving. Eventually, Elizabeth’s foot came loose from the stirrup and she fell to the ground. Elizabeth was rushed to the hospital, but she had suffered massive head injuries and nothing could be done to save her.

[11] In addition to the evidence of the events on the trail ride that ended with Elizabeth’s death, the Crown sought to lead evidence of occurrences on other trail rides at the ranch between 1998 and 2001. The Crown argued that this evidence demonstrated that Nevada was not a suitable horse for Elizabeth, that the respondents knew or should have known that Nevada was not suitable, and that various practices followed on the trail rides were unsafe and exposed the riders to unnecessary risks. The trial judge admitted evidence of four of the occurrences, one of which involved Nevada. He excluded evidence of three of the occurrences, all of which involved Nevada. This ruling gives rise to the Crown’s first ground of appeal.

[12] The Crown also sought to lead expert evidence from three witnesses. The Crown proposed to lead evidence of the procedures that should be followed when operating trail rides, especially those involving young novice riders and the appropriateness of some of the procedures followed by the respondents. The trial judge excluded all of this evidence. This ruling gives rise to the Crown’s second ground of appeal.

[13] Coultice testified. He had owned and operated the Wagon Wheel Ranch for almost 50 years. Coultice acknowledged that as the owner of a business providing trail rides, he had a duty of care to riders, including Elizabeth. He agreed that he was obliged to provide those customers with a “reasonably safe trail ride”. He further agreed that his duty included providing Elizabeth with a suitable horse, giving her adequate instructions before the ride commenced, and providing proper support and supervision during the ride.

[14] Coultice knew Elizabeth was a beginner and he agreed that she had to be paired with a horse that had a docile and gentle disposition. This kind of horse was referred to in the evidence as a “dead calm” horse. Mr. Coultice testified that Nevada had been working on the ranch for two years and was known to Mr. Coultice as a “dead calm” horse and a favourite of children.

[15] Coultice was not on the trail ride and could not speak directly to what happened. He testified, however, that to his knowledge nothing untoward had happened. He and others testified that even the most gentle horse could become “spooked” and bolt for no apparent reason. Coultice suggested that this is what must have happened when Elizabeth lost control of Nevada.

[16] Tarpey did not testify. There was evidence, however, that he had worked for Coultice for some 22 years and was highly regarded as a careful trail boss.

Positions of the Parties at Trial

[17] The Crown’s case was based on the cumulative effect of numerous alleged failings and inadequacies in the operation of the trail ride. Crown counsel referred to 12 areas of the evidence in his closing argument. The conduct which the Crown said demonstrated criminal negligence included:

• placing Elizabeth on a horse that was not suitable for a ten year old novice rider;
• failing to advise Elizabeth’s parents of the risks inherent in a trail ride;
• failing to provide Elizabeth with adequate instruction before commencing the trail ride;
• failing to ensure that Elizabeth was wearing a helmet and shoes with a heel;
• failing to maintain proper supervision during the ride. Proper supervision included controlling the speed of the horses, ensuring that they stayed in a single file line, and addressing problems with horses when they arose in the course of the ride;
• failing to properly keep the trail ride and stable area free of obstructions; and
• failing to control the dogs who lived on the ranch.

[18] Counsel for Coultice contended that his client had fulfilled his duty to Elizabeth and that if there were any shortcomings in the operation of the trail ride, they did not reach the level required for a finding of criminal negligence. Counsel further argued that it was not accepted practice in 1998 to require all riders to wear helmets and heeled shoes and that in any event, the absence of a helmet and heeled shoes did not contribute to Elizabeth’s death.

[19] Tarpey’s defence was similar to Coultice’s. Counsel for Tarpey put it in these words:

Scott Tarpey is an experienced and careful trail boss who took a trail ride on April 18, 1999. A horse known to be friendly, quiet, slow and even docile, a horse for kids, and for beginners, for no apparent reason bolts out of a walking line, the rider falls and is, I suggest to you, unpredictably and tragically dragged to her death. This is an accident. It is a tragedy, but it’s an accident.

The Grounds of Appeal

(A.) The Exclusion of Evidence of Nevada’s Disposition

[20] Nevada was a four year old Gelding in good health who was well cared for and had no apparent vices. He had worked as a trail horse on the ranch for two years.

[21] As indicated above, the respondents acknowledged that they had a duty to match Elizabeth with a suitable horse and that given her age and inexperience only a “dead calm” horse was suitable for her. The respondents contended that Nevada fit that description. Several witnesses described Nevada as a docile, if not, lazy horse and an appropriate mount for a young inexperienced rider. It was the Crown’s position that Nevada was an unpredictable horse who could be difficult to control on trail rides. In support of this position, the Crown sought to lead evidence of four prior incidents that had occurred on trail rides involving Nevada. The trial judge admitted only the evidence of the incident involving Heather Scrivens.

[22] Heather Scrivens was a 12 year old novice rider. She rode Nevada on April 2, 1999, about two weeks before Elizabeth’s death. Ms. Scrivens testified that she was not told that the horses would run in the course of the trail ride. During the ride, Nevada and the other horses broke into a run, but Nevada did not stop when the rest of the horses did. Ms. Scrivens tried to bring Nevada to a stop by pulling on the reins, however, Nevada reacted by jerking his head from side to side causing Ms. Scrivens to slip partially out of the saddle. Tarpey, who was in charge of the ride, came to Ms. Scriven’s assistance and told her to pull more gently on the reigns to make the horse stop. Ms. Scrivens was very upset so Tarpey led her and Nevada back to the barn.

[23] The evidence excluded by the trial judge involved three separate incidents that occurred within two weeks of Elizabeth’s death.

(i) The Watt Incident

[24] On April 5, 1999, Laura Watt, age 12, and some friends went to the Wagon Wheel Ranch to trail ride. Ms. Watt had ridden a horse once before. Mr. Coultice was present when Ms. Watt and her group arrived. Ms. Watt was paired with Nevada. She was not shown how to control the horse or told what to expect on the trail ride. Tarpey was the trail guide.

[25] During the trail ride, Ms. Watt and her friends wanted to make the horses run. Nothing untoward happened during the first run. During a second run, Ms. Watt noticed that one of her stirrups was loose. After a third run, she told one of the guides about the stirrup. The guide told her not to worry about it as there would be no more running on the ride. As the horses were walking down the last hill toward the barn, Ms. Watt felt something hit her left foot and fall off. The object struck Nevada’s hoof causing him to rear-up on his hind legs. Ms. Watt slipped partly out of the saddle, but remained on the horse. Her right leg was on the saddle and her left leg was under Nevada’s belly. Nevada ran in the direction of a fence. Ms. Watt jumped off as Nevada approached the fence.

(ii) The Berkholz Incident

[26] The second incident occurred on April 11, 1999. David Berkholz, age 26, and his girlfriend went riding at the ranch. Mr. Berkholz, who had no experience riding horses, told the staff that he was a beginner. He was paired with Nevada. According to Mr. Berkholz, he received no instructions about controlling the horse on the ride until he specifically asked Tarpey for help.

[27] Mr. Berkholz testified that Nevada was not responding to his directions during the early part of the ride. Berkholz felt that he did not have control of Nevada. Despite this lack of control, Mr. Berkholz wanted Nevada to go fast. With some encouragement, Nevada broke into a gallop. While Nevada was galloping, Mr. Berkholz kicked the horse’s side several times. Nevada bucked backwards causing Mr. Berkholz to lose his balance. He dove from the horse to the ground. Tarpey chased after Nevada who ran off. Another guide admonished Mr. Berkholz for kicking Nevada. Eventually, Tarpey returned with Nevada, Mr. Berkholz got back on the horse and finished the ride.

(iii) The Tymburski Incident

[28] The third incident occurred on April 17, 1999, the day before Elizabeth’s death. Katherine Tymburski, a teenager and experienced rider, took Nevada on a trail ride. Tarpey was in charge of the trail ride and Coultice was in charge at the ranch.

[29] Ms. Tymburski testified that Nevada and the other horses galloped four or five times during the trail ride. She sensed that Nevada was uncomfortable when he was close to other horses. Nevada bit one of the horses in front of him. During one of the runs, Nevada swayed from side to side and Ms. Tymburski feared that she might fall off of the horse. As they neared the end of the ride, Ms. Tymburski mentioned to one of the guides that Nevada seemed to “act weird around the horses, when the horses come up behind him”. She told the guide that she had almost fallen off of Nevada. The guide smiled, said “Oh really” and did not seem particularly concerned. Ms. Tymburski could not identify the guide, but it was not Tarpey or Coultice.

[30] At trial, the Crown relied on the evidence of the three incidents described above as evidence of Nevada’s disposition and also as part of the larger package of evidence going to the allegedly negligent practices followed by Coultice and Tarpey. The trial judge’s ruling addressed both bases upon which the Crown sought to tender the evidence. On appeal, the Crown advances disposition as the only ground of admissibility.

[31] The trial judge recognized that the evidence of the three incidents was offered in part as evidence of Nevada’s disposition. He excluded the evidence because in his opinion, the probative value on the question of Nevada’s disposition did not outweigh the potential prejudicial effect of the evidence.

[32] Mr. Lepofsky, Crown counsel, accepts that evidence is properly excluded where its prejudicial potential outweighs its probative value. He also accepts that the trial judge’s calculation of that balance is entitled to deference in this court absent some error in principle or misapprehension of the evidence.

[33] Insofar as the evidence of the Watt and Berkholz incidents is concerned, I see no basis upon which to interfere with the trial judge’s ruling. In assessing probative value, the trial judge observed that the evidence was offered to show that Nevada was an unpredictable horse who was prone to engage in unexplained and dangerous conduct during trail rides. The evidence involving Watt and Berkholz was not evidence of unexplained conduct by Nevada. Nevada’s conduct when being ridden by Watt was explained by the stirrup hitting his hoof, and his conduct when being ridden by Berkholz was explained by Berkholz’s mistreatment of Nevada. I think it was open to the trial judge to view this evidence as suggesting nothing more than that Nevada could be “spooked” if struck unexpectedly on the hoof or repeatedly kicked by his rider. Viewed in this light, the evidence added very little to the Crown’s case.

[34] The trial judge also found that the evidence of Watt and Berkholz carried some prejudicial potential in that the jury might draw the unwarranted inference that Nevada was an unsuitable horse for Elizabeth from the mere fact that Nevada had bolted on prior occasions without regard to the explanations for Nevada’s conduct. I think it was open to the trial judge to make this finding, although the factors which tend to minimize the potential probative value of the evidence also tend to reduce its potential prejudicial effect. These incidents were so different from that involving Elizabeth, it is most unlikely that the evidence would have assisted the jury.

[35] The evidence of the Tymburski incident stands on a different footing. Ms. Tymburski gave evidence that Nevada was difficult to control on the trail ride the day before Elizabeth’s death. Unlike the Watt and Berkholz incidents, there was no explanation offered for Nevada’s behaviour. This evidence did suggest that Nevada was not a “dead calm” horse, but was in fact difficult to handle on trail rides.

[36] The trial judge found that Ms. Tymburski’s evidence had very little probative value because she was not a novice rider and was not, therefore, in the same position as a person like Elizabeth. I cannot agree with this analysis. The evidence was offered to show that Nevada was not a “dead calm” horse. The fact that Ms. Tymburski was an experienced rider, but was still having difficulty controlling Nevada on a trail ride, added probative value to the evidence as it related to Nevada’s disposition and the Crown’s contention that Nevada was not a suitable horse for a young novice rider.

[37] The trial judge erred in holding that the probative value of Ms. Tymburski’s evidence on the issue of Nevada’s disposition was diminished because she was an experienced rider. This error skewed the probative value/prejudicial effect analysis and led to the improper exclusion of the evidence. I will address the effect of this error later in these reasons.

(B.) The Exclusion of the Expert Evidence

[38] At trial, the Crown sought to lead evidence from three experts. The trial judge was invited to determine the admissibility of this evidence on the basis of the testimony the three experts had given at the preliminary inquiry. The trial judge excluded the evidence of all three witnesses. On appeal, the Crown argues that the trial judge erred in excluding the expert opinion evidence of Bruce Brown and Katrina Gaul. The Crown does not dispute the exclusion of the evidence of the third expert.

[39] Mr. Brown and Ms. Gaul had extensive experience in the operation of trail rides and equally extensive backgrounds in relation to safety issues relating to horseback riding in general and trail rides in particular. The Crown argued that their evidence was relevant to the safety procedures which reasonable trail ride operators should follow when conducting trail rides, particularly when those rides included young, inexperienced riders. The Crown argued that the experts’ evidence could assist the jury in determining whether the respondents met that standard and, if not, whether their conduct showed a marked departure from the expected norm.

[40] The trial judge rejected the experts’ evidence because it did not meet the necessity criterion for the admissibility of expert opinion evidence. He came to that conclusion for two reasons. First, the trial judge held that the expert evidence was directed at “ideal standards for an industry that is unregulated”, rather than at the standard which the jury would apply when determining whether the Crown had proven criminal negligence. Second, the trial judge held that the evidence was unnecessary in the sense that it would not assist the jury in resolving the relevant issues. The trial judge said:

There is no need for expert opinion evidence for a jury to determine whether the defendants failed to do what was their duty and whether or not such failure displayed wanton or reckless disregard for the life of Elizabeth Harder. There were others present who saw the accident. Some were on the same trail with Elizabeth. The method used by the defendants in assigning horses to customers and the procedure used on the trail ride are before the jury.

[41] I disagree with both conclusions. The evidence of Brown and Gaul does not, except perhaps in a few isolated areas, address the ideal way to operate a trail ride, but speaks to what these witnesses regarded as safe and unsafe practices in the operation of trail rides. Even if some parts of their evidence drifted to a description of an ideal standard, those parts could have been excluded without ruling all of the witnesses’ evidence inadmissible.

[42] Further, the availability of witnesses who gave firsthand testimony of the relevant events and the respondents’ practices on trail rides did not render the expert evidence unnecessary. Expert evidence assumes that evidence of the primary facts has been or will be adduced. Expert evidence provides evidence by way of the expert’s opinion as to the inference that should be drawn from the primary facts. Experts are allowed to give their opinion because the trier of fact is not likely to have the requisite expertise and, therefore, not likely to draw the appropriate inference from the primary facts: R. v. Mohan (1994), 89 C.C.C. (3d) 402 at 412-13 (S.C.C.). Firsthand evidence of the events leading to Elizabeth’s death, and evidence of the procedures and practices routinely followed by the respondents when conducting trail rides not only did not render expert evidence unnecessary, but was a precondition to its admissibility.

[43] The necessity requirement as applied to the admissibility of expert evidence serves as a screen to exclude evidence that will potentially do more harm than good to the fact finding process. The necessity inquiry is directed at the extent to which the proffered evidence will assist the trier of fact in arriving at an accurate factual inference balanced against the risks and costs associated with the admission of expert evidence. When courts speak of expert evidence as being necessary, they are in fact saying the potential of the evidence to assist the trier of fact in drawing the correct inference outweighs the risks and costs associated with the admission of that kind of evidence.

[44] Three formulations of the necessity requirement were described in R. v. K.(A.) (1999), 137 C.C.C. (3d) 225 at 265 (Ont. C.A.). For present purposes, the second and third descriptions are apt:

Will it provide information which is likely to be outside the experience of the trier of fact? or

Is the trier of fact unlikely to form a correct judgment about a matter in issue if unassisted by the expert opinion evidence?

[45] Much of the evidence offered by the two experts meets the necessity requirement as described above. While it is fair to say that some of their opinions would have been self-evident to any reasonable trier of fact and could, therefore, be described as unnecessary, other parts of their opinions were well beyond the experience of average triers of fact. For example, these witnesses would have testified as to the appropriate instructions to be given to novice riders before a trail ride was commenced. They would also have given evidence as to the manner in which trail rides should be safely organized and supervised. I do not think that these are subject matters upon which average jurors could come to an informed conclusion without expert assistance.

[46] I am satisfied that much of the evidence of Brown and Gaul met the necessity criterion and should have been admitted by the trial judge. He erred in law in excluding the entirety of their evidence.

(C.) The Effect of the Errors

[47] The Crown has demonstrated errors in law. It is entitled to a new trial, however, only if it can demonstrate with a reasonable degree of certainty that the verdicts would not necessarily have been the same had the errors not been made: R. v. Morin (1998), 44 C.C.C. (3d) 193 at 221 (S.C.C.); R. v. Evans (1993), 82 C.C.C. (3d) 338 at 350 (S.C.C.); R. v. Watkins (2003), 181 C.C.C. (3d) 78 at 96 (Ont. C.A.). I do not think the Crown has met its burden. I will address the effect of the two errors individually bearing in mind, however, that it is the cumulative effect of the errors which must be considered.

(i) The Tymburski Incident

[48] Insofar as the Crown’s case was based on the suitability of Nevada as a horse for a young rider, the Crown had to show that Nevada was unsuitable and that the respondents knew he was unsuitable, or had failed to make the necessary inquiry to determine Nevada’s suitability. Ms. Tymburski’s evidence would have provided some assistance to the Crown on the first of these issues. Her evidence did not, however, implicate either respondent. There was no evidence that the respondents knew of the incident involving Ms. Tymburski. Nor, in my view, could the Crown successfully argue that they should have known about the incident. It was a single, relatively innocuous event which precipitated only a brief, casual comment to somebody by Ms. Tymburski. Without evidence that the respondents knew of the Tymburski incident or ought to have known about it, there is no realistic possibility that evidence of the incident would have made any difference to the verdicts.

(ii) The Expert Evidence

[49] My reading of the evidence of Brown and Gaul leaves me unconvinced that it could have made a difference in the result. I come to that conclusion for four reasons. First, much of their evidence amounted to expressions of personal experiences and preferences and did not address the appropriate standard of conduct or the reasonableness of the respondents’ conduct. For example, the witnesses spoke of how they trained guides for trail rides and how they positioned guides in the course of trail rides. They did not, however, purport to describe an appropriate standard of care or to measure the respondents’ conduct against that standard.

[50] Second, various parts of the evidence offered by the experts addressed factors which were irrelevant to the facts of this case. For example, one of the experts spoke of the need for an appropriate first aid kit on a trail ride. The presence or absence of a first aid kit had nothing to do with this case.

[51] Third, some of the evidence offered by the experts would not have furthered the Crown’s case. For example, the experts’ evidence as to whether helmets and heeled shoes were required on trail rides in April 1999 fell well short of the assertion that the failure to require riders to wear helmets and heeled shoes fell below accepted safety practices in April 1999.

[52] Fourth, some of the evidence was unnecessary. Both experts spoke at some length about the importance of matching a horse to a rider, particularly where the rider was inexperienced. However, the respondents acknowledged their obligation to match the horse to the rider and conceded that Elizabeth had to be matched with a “dead calm” horse because of her age and inexperience. Battle was joined primarily on the question of whether Nevada fit that description. The experts’ evidence as to how horses should be matched to riders would not have assisted the jury on this crucial question.

[53] Viewing this trial with the benefit of hindsight, I think it came down to a single issue – Did the Crown prove beyond a reasonable doubt that the respondents were criminally negligent in allowing Elizabeth to take Nevada on the trail ride? The answer turned on the resolution of two factual issues – Did the Crown prove that Nevada was not a “dead calm” horse, and did the Crown prove that the respondents knew or ought to have known that Nevada did not fit that description. The Crown has not satisfied me to a reasonable degree of certainty that the answers to both questions would not necessarily have been the same had the improperly excluded evidence been heard by the jury.

[54] I would dismiss the appeal.

RELEASED: “DD” “MAY 13 2004”

“Doherty J.A.” “I agree John Laskin J.A.” “I agree M. Rosenberg J.A.”