SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE COUNCIL OF CANADIANS et al
Applicants
- and -
HER MAJESTY THE QUEEN
Respondent
---Before THE HONOURABLE MADAM JUSTICE WRIGHT, at the Superior Court
of Justice, Courtroom # 805, 393 University Avenue, Toronto, Ontario, on May 12, 2015, commencing at approximately 10:00 a.m.
REASONS FOR DECISION
COUNCIL OF CANADIANS v. HER MAJESTY The QUEEN, 2015, ONSC 4219
A P P E A R A N C E S:
Mr. Sullivan For the Applicants
D. Dyke For the Respondent
TUESDAY, MAY 12, 2015
REASONS FOR DECISION
WRIGHT, J. (Orally):
Introduction
The Attorney General brings this motion to have affidavit evidence struck under Rules 4.06(2) and 25.11, in preparation for and in anticipation of an upcoming injunction hearing.
Background
On October 10, 2014, the applicant served a Notice of Application challenging various provisions of the Fair Elections Act on the grounds that they violate Sections 3 and 15 of the Canadian Charter of Rights and Freedoms.
On March 11, 2015, the applicant served a Notice of Motion for an injunction staying the operation of the provisions of the Fair Elections Act dealing with vouching for identity and residency, and the use of voter information cards as proof of identity in an election.
On March 12, 2015, the applicants served some of the affidavits that they would be relying on in the motion, which included affidavits from Yasmine Dawood and Jessica McCormick. These witnesses have not been proffered as expert witnesses, nor have they signed acknowledgements indicating such. They are, for all intents and purposes, lay witnesses.
The moving party is seeking an order striking the entire affidavit of Yasmine Dawood on the basis that it amounts to expert opinion evidence, and/or, is irrelevant and as such is not admissible.
The moving party also seeks an order striking portions of the affidavit of Jessica McCormick on the basis that it amounts to expert opinion evidence, and/or, is irrelevant and as such is not admissible.
Opinion Evidence Rule
The Opinion Evidence Rule is a general rule of exclusion. It has a long standing history grounded in the principle of fairness. Opinion evidence is therefore presumptively inadmissible and has been described as an inference, deduction, impression or conclusion from an observed fact or facts.
In a typical case, witnesses testify to facts and as such are not entitled to give opinion evidence. They are only allowed to testify to facts personally or directly from their knowledge, observation, and experience. Inferences or opinions drawn from or based upon those facts are exclusively within the province of the trier of fact.
There are two exceptions to this principle which allow for the hearing of opinion evidence.
Evidence of an ordinary or lay witness who is unable to separate fact and inference in describing an observation or experience.
Evidence of a witness who has special skill or knowledge otherwise unavailable to the trier of fact and has been deemed to be an expert by that court.
The importance of this principle and the court’s role as gatekeeper has been, and continues to be, reinforced in the case law. I am ever mindful in my role as the motions judge to not usurp or tie the hands of the judge hearing the injunction motion. I have thereby instructed myself that if I have any doubt concerning the admissibility or relevance of some or all of a given affidavit, it is best to err on the side of caution and not strike the material from the record.
Affidavit Evidence of Jessica McCormick
In relation to the affidavit evidence of Jessica McCormick, I find myself in such a position. There is no doubt that there are sixteen paragraphs or partial paragraphs in her affidavit that closely resemble expert opinion evidence. My inclination on first blush would be to find it to be expert opinion evidence given by a non-expert, and find it inadmissible.
I, however, upon reflection, harbor some residual concern that I, sitting as a motion judge on this narrow issue without the benefit of a fulsome court record, am not in the best position to assess this evidence, and it is best left for the determination by the injunction motions judge. In reaching that conclusion I am in part persuaded by the reasoning of Justice Harvison-Young in Lockeridge v. Ontario, where she cautions that a negative impact can flow from excising or dissecting evidence. I appreciate that her analysis was in relation to an expert report, but nonetheless, I feel it has some applicability to the affidavit evidence of Jessica McCormick.
I make a similar finding in relation to paragraphs 24 and 25 of Jessica McCormick’s affidavit.
Mr. Sullivan argues that they are not relevant and therefore not admissible. I do not disagree with the categorization. However, once again, especially in relation to the issues of relevance, a judge hearing the entire matter and having the benefit of a complete court record is in a far better position than I to make that decision.
For those reasons set out above, I find that I lack the level of certainty required to strike the affidavit evidence of Jessica McCormick.
Affidavit Evidence of Yasmine Dawood
I will now turn to the affidavit of Yasmine Dawood. After a thorough review of Yasmine Dawood’s affidavit, I do not find that it amounts to expert evidence despite her defining herself as such.
Paragraphs 2 through 8 are a mix of her personal knowledge and personal opinion. Her opinion seems to be based on personal experience, albeit with a real legal argument quality to it. As I see it, it becomes a question of relevance.
I admit at this stage my inclination would once again be to find the evidence articulated in paragraphs 2 through 8 not relevant. My inclination however, falls well below the certainty standard necessary to strike the evidence.
I find that the injunction judge would be in a much better position than I to make that decision, and as such I am not prepared to exercise it.
I find myself in a much different position when it comes to paragraph 9 of the Dawood affidavit. This paragraph is clearly a commentary criticizing the government process in crafting the amendments the Canada Elections Act. I find that in doing so it completely offends and is contrary to the well established rule that the evidence going to the fairness of the legislative process is irrelevant.
Accordingly, paragraph 9 will be struck from the affidavit of Yasmine Dawood.
This completes my ruling on this matter.