Court File and Parties

Court File No.: Halton-Burlington Information nos. 1260-999-13-7247; 1260-999-13-7246; 1260-999-14-7592

Date: 2016-01-25

Ontario Court of Justice

Between:

Halton Region Conservation Authority

— AND —

Houshyar Ahmad, Lavinder Aulakh, Benji Transport Inc., Brock Aggregates Inc., Lewis Burchell, Dancar Haulage Corporation, Dilligaf Logistics Ltd., EarthCo Soil Mixtures Inc., G & L Group Ltd., Nana Gambrah, Gambrah Trucking Co., Courtney Gayle, Heavy Weight Trucking Inc., Hours Trucking Company, Zakir Housein, Coleen Ann Hunter, Jas Deol Trucking Inc., Jeorge Campoverde Haulage Ltd., Pasquale Lamanna, Carol McLean, Anthony Mensa, Earl Patrick, Nickolai Romantchenko, Noel Roper, Jaspal Singh, Tylors Trucking Services Inc., Surjit Uppal, Carlo Waite, O'Niel Young, Erica Young, 1167877 Ontario Inc., 1191669 Ontario Inc., 1688543 Ontario Inc., 1770195 Ontario Inc., 2163832 Ontario Inc. and 6282121 Canada Inc. under Information Number 1260-999-13-7247; Darren Baig and Salman Cevlik under Information Number 1260-999-13-7246; EarthCo Soil Mixtures Inc. under Information Number 1260-999-14-7542

Ruling on Voir Dire

Before: Justice of the Peace Kenneth W. Dechert

Voir Dire heard on: December 7th, 2015 and January 4th, 2016

Reasons for Judgment released on: January 25th, 2016

Burlington Provincial Offences Court

Counsel:

K. Jull and S. Petersen, co-counsel for the Halton Region Conservation Authority
M. Klaiman, counsel for the defendants

Cases and Publications Cited

Cases:

Publications:

Cross, Professor Rupert, Cross on Evidence, 5th edition, (1979)
Lederman, The Honourable Mr. Justice Sidney N., Bryant, The Honourable Mr. Justice Alan W. and Fuerst, The Honourable Madam Justice Michelle K., Sopinka, Lederman and Bryant: The Law of Evidence in Canada, 4th Edition, (LexisNexis Canada, 2014)
Paciocco, Mr. Justice David and Stuesser, Professor Lee, The Law of Evidence, seventh edition, (Irwin Law Inc., 2015)

K.W. DECHERT, J.P. (orally)

INTRODUCTION

[1] The trial of the subject consolidated proceedings began before me on September 1st, 2015. The evidentiary phase of the proceedings commenced on September 4th, 2015, when the prosecution called its first witness, Mr. Nathan Murray.

[2] During the course of Mr. Murray's examination in chief, the counsel for the defendants objected to the admission of an opinion on the basis that it was neither an expert opinion nor a properly admissible lay opinion. A voir dire to determine the admissibility of the subject opinion commenced on December 7th, 2015 and was completed on January 4th, 2016. The voir dire was then adjourned until January 25th, 2016, for my ruling.

[3] On September 4th, 2015, Mr. Murray testified that he was employed by the Halton Region Conservation Authority as a watershed enforcement officer. He advised that on October 3rd, 2012, he had occasion to attend the property municipally known as 7459 Auburn Road, in the Town of Milton, where he took photographs and made observations of the topography of the parcel of land and the apparent grading activity on the parcel.

[4] He stated that at that time, he observed "soil type material" on the property, which he "categorized" as "topsoil type material". He was then asked if he was able to make any assessment as to how fresh the topsoil was, to which he responded as follows:

At this time – at this visit when this photo [exhibit B, slide 1] was taken, I would suggest this was very fresh material and there were no indication of new vegetation growing on it. I didn't observe any new vegetation growing on the material.

[5] At this point in time, the counsel for the defendants objected to the admission of Mr. Murray's conclusion pertaining to the freshness of the topsoil, stating as follows:

I have a problem with his evidence. … It appears that his evidence is somewhat in the nature of opinion evidence as to what's fresh topsoil or not, if he's not a soil expert how could he know if it's fresh or not. And if he's not then how could he give the opinion as to what's fresh or not fresh, in fairness.

[6] The counsel for the prosecution submitted that the officer's opinion as to the quality of the topsoil; that it was "very fresh material", was properly admissible under the lay opinion evidence exception to the traditional common law rule barring a non-expert witness from giving opinion evidence.

[7] As stated above, on December 7th, 2015, I embarked upon a voir dire to determine the admissibility of the non-expert opinion as to the quality of the subject topsoil. At that time, Mr. Murray testified in chief. He was cross-examined on January 4th, 2016, following which I received the final legal submissions of the parties.

THE ISSUES

[8] The central issue in this voir dire is whether Mr. Murray's opinion that the subject topsoil was "very fresh material" is admissible evidence in the subject trial.

[9] The sub-issue is whether the prosecution has established on a balance of probabilities, all of the elements of the common law "lay opinion evidence" rule, to justify the admission of the challenged opinion, as an exception to the general rule barring the reception of opinion evidence.

THE EVIDENCE ON THE VOIR DIRE

[10] During the voir dire, I received the testimony of Mr. Nathan Murray.

[11] Mr. Murray testified that he was employed by the Halton Region Conservation Authority ("the HRCA") as a watershed enforcement officer and that he had been so employed since July 2011. He advised that prior to his employment with the HRCA he worked as the Park Warden of the Bronte Creek Provincial Park, from May 2010 to September 2010 and from May 2011 to September 2011.

[12] Mr. Murray testified that he graduated from the "Natural Resources Law Enforcement Program" through Sir Sanford Fleming College, in April 2010. He stated that through that program, he learned basic management techniques with respect to environmental resources in the context of environmental legislation, including the management of land resources such as wetlands and flood plain zones in accordance with the Conservation Authorities Act. Furthermore, he advised that he successfully completed certification courses in "sediment and erosion control installation methods" in 2011 and in 2014. He advised that upon completion of these courses he was certified in the procedures of identifying construction sites and in respect of the methodology designed to control or mitigate the erosion of sediment or dirt during the course of construction activity.

[13] Mr. Murray testified that during the course of his tenure as the watershed enforcement officer for the HRCA, he was the only enforcement officer employed by the Authority. Accordingly, he was responsible for conducting all investigations relative to violations of the various statutes and regulations governing lands within the regulatory ambit of the HRCA.

[14] Mr. Murray testified that in the course of his enforcement responsibilities he conducts about 200 investigations per year, of which approximately 60% involve allegations of fill violations or fill-permit violations, relative to the placement of dirt or soil on lands within the jurisdiction of the HRCA. Mr. Murray went on to advise that in his role as the watershed enforcement officer, he works with a number of engineers and ecologists who assist him in fulfilling his said enforcement duties.

[15] Mr. Murray testified that on October 3rd, 2012, he attended at the property municipally known as 7459 Auburn Road, in the Town of Milton, to conduct an investigation into allegations that fill had been illegally placed on that property. He advised that in the course of his investigation that day, he took photographs of the parcel of land and of objects located thereon. He identified two such photographs which were admitted into evidence on the voir dire, collectively, as exhibit #2.

[16] Mr. Murray identified the first photograph as a panoramic view of the subject parcel of land. When asked if he could make any comments as to the "freshness" of the fill on the property based upon the contents of the photograph, Mr. Murray advised of a number of factors he would look for in reaching a conclusion as whether the fill had been recently placed on the property. He advised that he would look for evidence of construction activity on the property, particularly the existence of tire tracks or bulldozer tracks, noting the image of such tracks in the photograph.

[17] Furthermore, Mr. Murray stated that in opining whether dirt on a property had been "freshly placed" or "recently graded", he would take note of the existence of vegetation which might be "poking up through the fill". In this respect, Mr. Murray remarked that the lack of vegetation on top of the soil would be an indication that the soil had been freshly placed at the location.

[18] Upon reviewing his investigative notes of October 3rd, 2012, for purposes of refreshing his existing memory of his investigation of the subject property, Mr. Murray advised that upon generally examining the topography of the parcel of land, he concluded that the dirt on the surface of the parcel had been "recently graded". When asked by prosecution counsel as to what factors he relied upon "visually or otherwise" to come to the opinion that fill on the property had been recently graded, Mr. Murray stated as follows:

I would say there is two things that strike me from a – that I would recall; is the existence of a bulldozer on site and with that bulldozer would be the existence of dirt on the tracks of the bulldozer, similar to mud in the treads of your shoes, and then the lack of vegetation on site. Those two – three things is what would have led me to my conclusion that the area had been recently graded.

[19] Prior to completing his examination-in-chief on the voir dire, Mr. Murray commented on the second photograph entered as part of exhibit #2. He advised that he took this photograph at the time that he attended at the subject Auburn Road property on October 3rd, 2012. In describing the image in the photograph, Mr. Murray stated that it was a picture of a "yellow John Deere bulldozer 7APJ with the logo EarthCo on the side and an E and S in brackets, with dirt on the tracks of the dozer".

[20] When Mr. Murray was asked if he could from the photograph or his memory "give any assessment about the freshness of the fill shown in the picture", he stated as follows:

The dozer, the tracks – the dozer were – I remember this clearly, were still crisp. It's something that I in my personal capacity I do go hunting and when you're tracking animals you look for the crispness of their tracks and this is something that tells you whether that animal was there recently or not. In this case with the John Deere the crispness of the tracks were very evident in the both in the photo and in my personal recollection.

[21] During cross-examination, Mr. Murray advised that he considered himself to be "quite experienced" in the subject of "placement of fill within the jurisdiction of the Conservation Authority". He advised that in the geographical area governed by the HRCA, he has observed various types of soil differing in texture and in colour. He advised that he often sees "stratification of soils on a property", consisting of layers of different types of soil.

[22] When questioned as to the types of things he would look for when inspecting a parcel of land for "fill violations", Mr. Murray advised of a number of relevant factors. He stated that he would compare the colour of the layer of topsoil with that of the soil immediately below that layer, as indicia that the top layer may have been recently imported onto the property. He stated that he would look for the presence of "clumps" or "chunks" of dirt indicative of recent excavation activity on the property. He advised that he would look for the existence of new vegetation growth on the property. Furthermore, he would look at the height of the fill surrounding and abutting a tree trunk and how loose the fill is, as an indicator of how long the fill has been in existence at that location.

[23] In concluding his answer to this question, Mr. Murray stated as follows:

I look at construction equipment that's on the site, is there any construction on the site. I look at things like tracks. So for example construction equipment will leave tracks behind. Are the tracks fresh? Is the area level, flat? Is it moulded compared to the neighbouring property? So when evaluating a fill violation there are a plethora of factors that over the years I've learned to look for.

[24] Mr. Murray agreed with the suggestion put to him by the counsel for the defendants that he became aware of the factors to look for when examining soil on a parcel of land through the course of his experience and training. In this regard he remarked: "before July 2011 I wouldn't have known to look for all of those factors".

RELEVANT COMMON LAW

[25] In its decision in Regina v. Graat, [1982] 2 S.C.R. 819 (S.C.C.), the Supreme Court of Canada adopted a principled approach in respect of the issue of the admissibility of non-expert opinion evidence in endorsing the lay opinion exception to the exclusionary opinion evidence rule. In this regard, the Court developed the proposition that opinions derived from observations, which a person of ordinary knowledge and experience is able to make, are admissible in a trial proceeding on the basis that the opinion constitutes "a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctively"[1].

[26] In Graat, supra, the Court found that a person of ordinary knowledge and experience would be able to draw an inference from his/her observations as to whether or not the ability of an individual to operate a motor vehicle was impaired by the consumption of alcohol. In his decision, written on behalf of the unanimous court, Dickson J. (as he then was) specifically endorsed the notion of the admissibility of lay opinion evidence pertaining to the issue of the impairment of a person's ability to operate a motor vehicle. In doing so he stated as follows:

The judge in the instant case was not in as good a position as the police officers or Mr. Wilson to determine the degree of Mr. Graat's impairment or his ability to drive a motor vehicle. The witnesses had an opportunity for personal observation. They were in a position to give the court real help. They were not settling the dispute. They were not deciding the matter the court had to decide, the ultimate issue. The judge could accept all or part or none of their evidence. In the end he accepted the evidence of two of the police officers and paid little heed to the evidence of the third officer or of Mr. Wilson.[2]

[27] In defining the lay opinion evidence exception, Mr. Justice Dickson adopted the comments and reasoning enunciated by Professor Rupert Cross in his textbook titled Cross on Evidence, 5th edition (1979), at paragraphs 51 and 52 of Graat, as follows:

I agree with Professor Cross (at p. 443) that "the exclusion of opinion evidence on the ultimate issue can become something of a fetish". I can see no reason in principle or in common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived.

I accept the following passage from Cross (at p. 448) as a good statement of the law as to the cases in which non-expert opinion is admissible:

When, in the words of an American judge, 'the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated', a witness may state his opinion or impression. He was better equipped than the jury to form it, and it is impossible for him to convey an adequate idea of the premises on which he acted to the jury:

Unless opinions, estimates and inferences which men in their daily lives reach without conscious ratiocination as a result of what they have perceived with their physical senses were treated in the law of evidence as if they were mere statements of fact, witnesses would find themselves unable to communicate to the judge an accurate impression of the events they were seeking to describe.

There is nothing in the nature of a closed list of cases in which non-expert opinion evidence is admissible. Typical instances are provided by questions concerning age, speed, weather, handwriting and identity in general.

[28] At a later point in this decision, Mr. Justice Dickson noted that the weight to be afforded non-expert opinion evidence is solely within the province of the trier of fact. In this regard, at paragraph 56 of the said decision, the jurist made the following comments:

Whether or not the evidence given by police or other non-expert witnesses is accepted is another matter. The weight of the evidence is entirely a matter for the judge or judge and jury. The value of opinion will depend on the view the court takes in all the circumstances.

[29] In chapter 12 of their textbook, Sopinka, Lederman and Bryant: The Law of Evidence in Canada, 4th Edition, at paras. 12.11, 12.12 and 12.15, The Honourable Mr. Justice Alan Bryant, The Honourable Mr. Justice Sidney Lederman and The Honourable Madam Justice Michelle Fuerst, made the following comments pertaining to the "Modern Statement of Lay Opinion Evidence Rule: Helpfulness"[3], as developed in Regina v Graat, supra:

§ 12.11 Prior to the Graat decision, the trial judge would simply stop the witness if he or she began to answer in the form of an opinion and the judge would then determine whether the proffered testimony would be necessary for the trier of fact. Justice Dickson held that lay persons may testify about their observations where the witness is 'merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly'. Thus, the law moved away from the requirement of 'necessity' in the case of lay witnesses whereby opinion evidence was received only if the witness could not 'owing to the nature of the matter adequately convey to the jury the data from which such inference is made' to a 'helpfulness' standard.

§12.12 Couched in these terms, the modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on the witness' perceptions. The real issue will be the assessment and weight to be given to such evidence after it is admitted.

§ 12.15 In view of the 'helpfulness' principle enunciated by the Supreme Court of Canada in R. v. Graat, [supra.] the categories of topics about which a lay witness can testify are not limited. Since lay witnesses traditionally have been allowed to express opinions upon a number of established subjects and a certain amount of protective jurisprudence has developed around them to assure reliability, several illustrations are appropriate. These subjects should not be considered as falling with the exclusive domain of lay persons. For example, a lay person may conduct a pre-trial experiment, such as driving a car along a roadway to calculate the time it takes to travel from point A to point B or to determine at which point along the roadway a stop sign becomes visible. In these scenarios, the lay witness testifies to observed facts and it is for the trier of fact to draw inferences from the witness' observed facts. In comparison, a pre-trial experiment may be more complex and only a physician can perform and interpret the data. In this scenario, an expert performs the experiment and draws inferences from the observed facts to assist the trier of fact.

[30] In their textbook, The Law of Evidence, seventh edition, (Irwin Law Inc., 2015), Mr. Justice David Paciocco and Professor Lee Stuesser, distilled Mr. Justice Dickson's decision in Regina v. Graat, supra, so as to define the lay opinion evidence rule in terms of four elements. Those elements are summarized on pages 197 and 198 of the said textbook as follows:

Lay witnesses may present their relevant observations in the form of opinions where

• they are in a better position than the trier of fact to form the conclusion;

• the conclusion is one that persons of ordinary experience are able to make;

• the witness, although not expert, has the experiential capacity to make the conclusion; and

• the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions.

[31] These elements as summarized above were endorsed and adopted as the proper statement of the rule by Romaine J., in the decision in Dow Chemical Canada ULC v. Nova Chemicals Corp., 2015 ABQB 401 (Alta. Q.B.).

ANALYSIS

Issue: Whether the prosecution has established, on a balance of probabilities, all of the elements of the lay opinion evidence rule

(i) Is Watershed Enforcement Officer Nathan Murray in a better position than the trier of fact to form the conclusion that the topsoil observed by him in the morning of October 3rd, 2012, was "very fresh material"?

[32] In my view, the prosecution has succeeded in establishing this criterion. The preponderance of the evidence proffered during this voir dire shows that Mr. Murray is in a much better position than I, as the trier of fact, am in assessing the quality of the subject topsoil.

[33] Mr. Murray personally attended the property where the topsoil was located and made direct observations of the soil. He had the opportunity for personal observation of the manner in which the topsoil was spread across the subject parcel of land in the context of the apparent use of the land and other objects located thereon. Furthermore, he had the opportunity to conduct a close-up examination of the location of the soil in conjunction with any vegetation which might be found under the layer of topsoil or any other environmental features found on the property, thereby enhancing the reliability of his conclusion as to the quality of the topsoil.

[34] Mr. Murray is, therefore, in a position to provide me with real help as to the issue of the length of time that the topsoil had been in existence on the subject property prior to October 3rd, 2012. The admission of the challenged non-expert opinion in these proceedings is appropriate in accordance with the modern statement of the lay opinion evidence rule, emphasizing the principle of "helpfulness" to the trier of fact.

[35] Furthermore, Mr. Murray's opinion as to the freshness of the topsoil at the subject time is not, in my view, determinative of the ultimate issue which I must decide in these proceedings.

(ii) Is Officer Murray's conclusion that the topsoil was at the subject time, "very fresh material" one that a person of ordinary experience is able to make? and;

(iii) Does Officer Murray, although not an expert witness, have the experiential capacity to make the conclusion that the subject topsoil was "very fresh material"?

[36] It is, in my view, a matter of common sense that an individual of ordinary experience is capable of identifying things which are ubiquitous, especially a substance such as dirt or soil which, in its generic form, is found throughout our environment. On the other hand, I am not persuaded by the evidence proffered in this voir dire that a person of ordinary knowledge and experience has the capability of drawing an inference as to the various qualities or properties of topsoil in order to be able to render an opinion, based only upon his or her observations of the soil, relative to the degree of freshness of the soil.

[37] It is Mr. Murray's non-expert opinion that the topsoil which he observed to be placed on the subject parcel of land on October 3rd, 2012, based upon a combination of a number of factors. Those factors included his observation that the property appeared to have been recently graded given his observation of a bulldozer containing dirt clumps in its tracks parked on the parcel of land, his observation that there was no vegetation on the site and his observation that the bulldozer tracks on the land appeared to be "crisp" and therefore new. These factors, considered in totality, caused him to reach the conclusion that the topsoil had been recently placed on the property, and that it, therefore, constituted "very fresh" topsoil.

[38] I am, however, of the view that this criterion; being the second element of the lay opinion evidence rule, should not be analyzed in isolation. In my view this criterion is, in substance, sufficiently related to the third element of the rule, that it must be analyzed in the context of that element. In accordance with the underlying principle that the lay opinion be not only necessary but helpful to the trier of fact, I am of the view that I must consider the notion of the ability of a person of ordinary experience to render the challenged opinion in the context of Mr. Murray's substantial experiential capacity in the field of the investigation of topsoil placement violations and land resource management.

[39] The challenged opinion relates only to the issue of how long the subject topsoil had been in existence at the subject location as of October 3rd, 2012. While the evidence proffered during the voir dire persuades me, on a balance of probabilities, that such a conclusion relating to the condition or quality of topsoil, cannot be made by a person with ordinary experiences based only upon a bare observation of the substance, I am not convinced that specialized knowledge or experience in respect of the scientific qualities or components of various types of soil is required to reach a conclusion as to the degree of freshness of the soil.

[40] Mr. Murray is an individual who routinely works in the field of the investigation of the placement or dumping of dirt at various locations. He is therefore able to assess the age of soil which has been placed at various locations not only by visually examining the top soil but also by considering the specific location of the topsoil in the context of other circumstances pertaining to both environmental features of the parcel of land and the circumstances pertaining to its apparent use. Mr. Murray does not need to be an expert in the science of topsoil or other earthy substances in order to render an opinion as to the degree of freshness or the age of topsoil which may be spread over land at any particular location. I reach that conclusion because Mr. Murray has the necessary experiential capacity to form an opinion as to the degree of freshness of topsoil, which is an opinion that does not require an analysis of the characteristics of the subject soil from a scientific perspective.

[41] In conclusion, when I analyze the second element of the lay opinion evidence rule in combination with the third element; that the witness, although not expert, has the experiential capacity to make the conclusion, I am satisfied, on a balance of probabilities, that Mr. Murray, being a witness with greater experience in dealing with soil or fill than a person of ordinary experience, has the requisite degree of experiential capacity to provide the challenged opinion as to the freshness of the topsoil, based upon the "helpfulness" standard under the lay opinion evidence rule.

[42] Accordingly, the prosecution has established the second and third elements of the lay opinion evidence rule during the course of this voir dire, on a balance of probabilities.

(iv) Is Mr. Murray's opinion that the subject topsoil was "very fresh material" merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to a conclusion?

[43] I find that the appropriate answer to this question is in the affirmative. I am satisfied that the prosecution has, based on the evidence tendered in this voir dire, established this element of the lay opinion evidence rule on a balance of probabilities.

[44] During his testimony in the voir dire, Mr. Murray advised that he formed his conclusion that the topsoil which he observed to be placed on the subject parcel of land on October 3rd, 2012, based upon a combination of a number of factors. Those factors included his observation that the property appeared to have been recently graded given his observation of a bulldozer containing dirt clumps in its tracks parked on the parcel of land, his observation that there was no vegetation on the site and his observation that the bulldozer tracks on the land appeared to be "crisp" and therefore new. These factors, considered in totality, caused him to reach the conclusion that the topsoil had been recently placed on the property, and that it, therefore, constituted "very fresh" topsoil.

[45] It is, in my view, clear that Mr. Murray's expressed opinion that the subject topsoil was "very fresh" represented a concise summary of the numerous observations he made, forming the basis for his conclusion. It may therefore be properly characterized as a compendious mode of stating facts that were too complicated to be narrated as effectively without resort to a conclusion. If, in this trial, the witness had to explain the numerous observations and factors which, in totality, formed the basis of his inference that not only the subject topsoil but other piles of dirt on the property appeared to be fresh, the trial would become unnecessarily prolonged and inefficient.

[46] The circumstances and observations which Mr. Murray generally looks for in order to form his opinion as to the freshness of topsoil, are, in my view, complex. These factors and indicia would have to be not only stated, but adequately explained before a reasonable trier of fact would be able to reasonably draw the inference sought to be drawn; that the subject topsoil was "very fresh". On the other hand, by succinctly stating his conclusion that the subject topsoil constituted "very fresh material", Mr. Murray avoided having to describe a number of complicated factors and observations and explain how those factors and observations supported a finding that the topsoil was fresh. As such, in providing his concise opinion as to the quality of the observed top soil at the time, Mr. Murray gave his testimony in the form of a compendious statement of facts which were too complicated to be narrated separately and distinctly and without resort to conclusions.

[47] The counsel for the defendants argued that a witness' conclusory statement or opinion, made without reference to the specific observations which support the opinion, lacks sufficient weight to be admitted under the "compendious mode of giving evidence" exception to the general rule barring the admission of opinion evidence. While I understand the argument that a bare opinion may be of little value unless the particulars upon which it is based are proffered in evidence, that issue does not affect the admissibility of the subject non-expert opinion evidence. If the lay opinion meets the totality of the admissibility criteria, on a balance of probabilities, then it may be admitted even though it may be of little adjudicative value. As stated in Regina v. Graat, supra, the weight of the non-expert opinion or conclusion admitted in accordance with the "modern" lay opinion evidence rule is entirely a matter for the trier of fact. Accordingly, "the value of [the] opinion will depend on the view the court takes in all the circumstances"[4].

THE DECISION

[48] For the reasons stated above, I am satisfied that the prosecution has adduced sufficient credible evidence during this voir dire to prove all four of the elements of the lay opinion evidence rule, as stated in the decision in Dow Chemical Canada ULC v. Nova Chemicals Corp., supra, on a balance of probabilities. Accordingly, the non-expert opinion tendered into evidence by Mr. Nathan Murray during the course of his examination-in-chief of September 4th, 2015, that the topsoil type material which he observed on the land municipally known as 7459 Auburn Road, in the Town of Milton, on October 3rd, 2012, was "very fresh material" is hereby admitted into evidence in the trial of these proceedings. The objection registered by the counsel for the defendants relative to the admissibility of the opinion, is, therefore, overruled.

[49] While I have determined that the subject lay opinion is admissible in evidence in these proceedings, the degree of weight to be afforded to the said opinion is a matter which remains within the sole province of the trier of fact to be determined at the end of the trial in the context of the totality of the evidence adduced.

Released: January 25th, 2016

Signed: "Justice of the Peace Kenneth W. Dechert"

Footnotes

[1] Regina v. Graat, supra, para. 62.

[2] Ibid at para. 50.

[3] Sopinka, Lederman and Bryant: The Law of Evidence in Canada, 4th Edition, supra, chapter 12, pages 1 and 2.

[4] Regina v. Graat, supra, para. 56.

Halton Region Conservation Authority v. Ahmad et al., 2016 ONCJ 54

Case Summary