Supreme Court of Canada
Graat v. R.,  2 S.C.R. 819
Anthony Graat (Plaintiff) Appellant;
Her Majesty The Queen (Defendant) Respondent.
File No.: 16189.
1982: October 12; 1982: December 21.
Present: Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Evidence—Opinion evidence—Non-expert witnesses—Impaired driving—Degree of intoxication—Whether police officers and other witnesses opinions as to impairment of accused admissible—Criminal Code, R.S.C 1970, c. C-34 as amended, s. 234.
The trial judge accepted the opinion evidence of two police officers that the appellant’s ability to drive had been impaired by alcohol and convicted him under s. 234 of the Criminal Code. Appellant’s appeals to the County Court and the Court of Appeal were dismissed. This appeal is to determine whether a court may admit opinion evidence on the question to be decided—here, whether the appellant’s ability to drive had been impaired by alcohol.
Held: The appeal should be dismissed.
The question whether a person’s ability to drive was impaired by alcohol is one of fact, not of law, and non-expert witnesses may give evidence as to the degree of a person’s impairment. The guidance of an expert is unnecessary. The value of opinion will depend on the view the court takes in all the circumstances. The judges, however, should not consider the opinion of police officers in a preferential way merely because they may have extensive experience with impaired drivers. Here, the non-expert evidence was correctly admitted. The witnesses all had an opportunity for personal observations. They were not deciding a matter for the court to decide as the weight of the evidence is entirely a matter for the judge who could accept all or part or none of their evidence.
Wright v. Tatham (1838), 4 Bing. N.C. 489; R. v. German (1947), 89 C.C.C. 90; R. v. Marks,  O.W.N. 608; R. v. Zarins (1959), 125 C.C.C. 375; R. v. Beauvais,  3 C.C.C. 281; R. v. Pollock (1947), 90
C.C.C. 171; R. v. Cox (1948), 93 C.C.C. 32; Giddings v. The King (1947), 89 C.C.C. 346; R. v. Smith (1948), 17 Fortnightly L.J. 241; Grimsteit v. McDonald (1950), 96 C.C.C. 272; R. v. MacDonald (1966), 9 Crim. L.Q. 239; R. v. Davies,  1 W.L.R. 1111 (U.K.); R. v. Neil,  Crim. L.R. 698; A.G. (Ruddy) v. Kenny (1959), 94 I.T.L.R. 185; Sherrard v. Jacob,  N.I.L.R. 151; Burrows v. Hanlin,  S.A.S.R. 54; R. v. Spooner,  V.R. 540; R. v. Kelly,  V.R. 412; Blackie v. Police,  N.Z.L.R. 910, referred to.
APPEAL from a judgment of the Ontario Court of Appeal (1980), 116 D.L.R. (3d) 143, 55 C.C.C. (2d) 429, 30 O.R. (2d) 247, 45 N.R. 474, 17 C.R. (3d) 55, 7 M.V.R. 163, dismissing appellant’s appeal from a conviction for impaired driving. Appeal dismissed.
Edward L. Greenspan, Q.C., for the appellant.
Douglas C. Hunt, for the respondent.
The judgment of the Court was delivered by
DICKSON J.—This appeal raises the issue whether on a charge of driving while impaired the Court may admit opinion evidence on the very question to be decided, namely, was the accused’s ability to drive impaired by alcohol at the time and place stated in the charge.
The Procedural History
The appellant, Anthony Graat, was charged on August 10, 1978 at the City of London, County of Middlesex, while his ability to drive a motor vehicle was impaired by alcohol, he did drive a motor vehicle, contrary to s. 234 of the Criminal Code. He was tried, convicted, and sentenced to a fine of $300 or, in default, imprisonment for 30 days. An appeal to the County Court was dismissed. Leave to appeal to the Court of Appeal of Ontario was granted but the appeal was dismissed. The matter is now, by leave, before this Court.
At approximately 2:15 a.m. on the date in question, Constables Case and McMullen of the London City Police observed Mr. Graat’s vehicle travelling at a high rate of speed. The constables followed for several blocks. They observed Mr. Graat’s car weaving in the southbound lane, crossing the centre line on two occasions and driving onto the shoulder of the road on another occasion. When the vehicle turned left it straddled the centre line.
Both constables testified they noticed the smell of alcohol on the appellant’s breath; both said Mr. Graat was unsteady on his feet, he staggered as he walked, and had bloodshot eyes.
At the police station Mr. Graat was observed by a Sergeant Spoelstra. The sergeant testified he smelled alcohol on the appellant’s breath, the top part of his body was swaying, and his walk was “kind of wavy”.
Mr. Graat complained of chest pains. He told the police he suffered from a heart condition and asked to be taken to a hospital. The police complied. By the time Mr. Graat returned to the police station it was too late to take two breath samples because the two-hour time limit for the taking of such samples had expired or was about to expire.
Mr. Graat testified he had had two drinks of gin between the hours of 3:00 p.m. and 7:00 p.m., and two glasses of wine with his dinner about 11:00 p.m. He said he and two friends, George Wilson and Vincent O’Donovan, were returning from a sailing party; he became tired. Wilson drove the car while he dozed in the back seat. The appellant resumed driving after Wilson had driven O’Donovan and himself home. Wilson testified that if he had thought Mr. Graat was not in a fit condition to drive he would have asked him to stay at his, Wilson’s, house.
At trial Constable Case was asked the following questions and gave the following answers:
Q. All right, now what, if any, opinion having made those observations, what if any opinion did you form regarding the accused man’s ability to drive a motor vehicle?
A. I formed the opinion that the accused’s ability was impaired.
A. By alcohol.
Q. You said the accused man’s ability to what?
A. To drive a motor vehicle was impaired by alcohol.
Constable McMullen was asked the following question:
Q. Now officer when you were at the scene and having made the observations of the driving of the accused man, having observed him, having smelled the alcoholic beverage on his breath and observed him walk and observed him standing, observed him speaking to you what, if any, conclusion did you come to regarding his ability to drive a motor vehicle?
A. It was in my opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol beverage.
Sergeant Spoelstra, the desk sergeant, gave similar evidence:
Q. …You saw him standing and you saw him walking. What, if any opinion, did you form regarding his ability to drive a motor vehcile?
A. In my opinion the accused’s ability was impaired by the use of alcohol to drive a motor vehicle.
No objection was taken at trial to the admission of any of this evidence. Indeed, at the conclusion of the examination in chief of Sergeant Spoelstra, the following exchange took place:
MR. ALLAN: [Crown Counsel]
Q. Oh, wait a minute, what if any opinion, did you form regarding his ability to drive a motor vehicle from what you saw?
A. From what I saw.
Just one moment, please. This man’s a desk sergeant, he’s not the man in the field, so to speak. Do you say I should permit him to give his opinion?
Your Honour, with respect, even if he didn’t see the accused man driving, if the sergeant…
MR. SILVER: [then counsel for the defence]
I can save time, Your Honour, I’m quite content with it.
Thank you. Proceed.
I do not think failure on the part of defence counsel to object to the admission of inadmissible evidence should, in the circumstances of this case, stand in the way of directing a new trial if such evidence is held to be inadmissible.
The trial judge preferred the evidence of the police witnesses to the evidence of Mr. Graat and Mr. Wilson. In particular, the judge relied on the evidence of Constable McMullen and Sergeant Spoelstra, policemen for 8 and 17 years respectively. Constable Case had only been a police officer for a few months, and had only charged two or three persons with impaired driving. The judge said he accepted the opinions of officers McMullen and Spoelstra in reaching his conclusion that the accused’s ability to drive was impaired:
I’m of the view that I’m entitled to accept and I do accept the opinions of those two police officers on the issue of impairment as part of the totality of the evidence.
On the appeal to the County Court, Judge McNab concluded there was direct evidence upon which the trial judge was justified in making a finding that the ability of the appellant to drive was impaired.
The Ontario Court of Appeal
The appellant sought leave to appeal to the Court of Appeal of Ontario and at that time the question was raised as to whether the trial judge had erred in law in relying on the opinion evidence of the two police officers that the appellant’s ability to drive a motor vehicle had been impaired by alcohol.
The Court dismissed the appeal, saying that the evidence was admissible under the exception to the rule excluding opinion evidence:
…that permits non-expert opinion evidence where the primary facts and the inferences to be drawn from them are so closely associated that the opinion is really a compendious way of giving evidence as to certain facts—in this case the condition of the appellant.
This echoes the words of Parke B. in Wright v. Tatham (1838), 4 Bing. N.C. 489 (at pp. 543‑44):
…and though the opinion of a witness upon oath, as to that fact [testamentary capacity], might be asked, it would only be a compendious mode of ascertaining the result of the actual observation of the witness, from acts done, as to the habits and demeanour of the deceased.
On behalf of the Court of Appeal Chief Justice Howland delivered a lengthy, scholarly, judgment exhaustively reviewing academic opinion and case law relating to the exclusion of opinion evidence. He began with a passage from Cross on Evidence, 5th ed., 1979, at p. 442:
In the law of evidence ‘opinion’ means any inference from observed facts, and the law on the subject derives from the general rule that witnesses must speak only to that which was directly observed by them. The treatment of evidence of opinion by English law is based on the assumption that it is possible to draw a sharp distinction between inferences and the facts on which they are based. The drawing of inferences is said to be the function of the judge or jury, while it is the business of a witness to state facts.
The Chief Justice then spoke of two categories of opinion evidence that has traditionally been admissible: (i) cases calling for expert testimony in matters requiring specialized skill and knowledge, the only questions being whether the subject matter called for expertise and whether the witness was a qualified expert; (ii) non-expert opinion on matters requiring no special knowledge, where it is virtually impossible to separate the witness’ inference from the facts on which the inference is based. In the opinion of the Chief Justice, the admission of opinion evidence in the latter circum-
stance is merely a compendious way of ascertaining the result of the witness’ observations.
After canvassing the case law in this country and a number of other countries, Chief Justice Howland summed up in the following passage:
In my opinion, impairment is a degree of drunkenness. It is a compendious way of describing a condition based on observed facts. It does not require the evidence of a doctor or other expert, nor should it be limited to persons who themselves drive cars. It is a subject about which most people should be able to express an opinion from their ordinary day-to-day experience of life. To testify that a person is impaired is really tantamount to saying “I don’t think that he should have been driving”. In each case the opinion must be based on the observed facts: the car was weaving back and forth across the road, there was a strong odour of alcohol on the driver’s breath, his powers of perception and coordination were poor, he was drowsy and was not reacting quickly to other cars or pedestrians in the path of his car, and so on. To exclude such non‑expert evidence of witnesses who were passengers in the car of the accused or of other cars in the vicinity or who were pedestrians may result in an injustice to the accused and may at the same time impede the police in the prosecution of impaired drivers. Such evidence should be admissible. The weight to be given to such inferential testimony will vary from witness to witness, depending on the observed facts on which it is based.
The learned Chief Justice rejected the “ultimate issue” doctrine, i.e. that an opinion can never be received when it touches the very issue before the jury. He also noted that opinion evidence is properly rejected when it involves a legal component, such as the question of whether a person had acted negligently.
The judgment concludes:
In my opinion the trial judge did not err in admitting as non-expert testimony the opinion evidence of the police officers as to impairment, and in relying on it as part of the totality of the evidence. Having reached this conclusion, it is not necessary to consider whether the police officers could have qualified as experts and what evidence would have been necessary for this purpose.
Accordingly, leave to appeal is granted, but the appeal is dismissed.
The Case Law
The question in issue is a vexed one. The authorities in this country and elsewhere are by no means congruous. One of the earliest, and most frequently quoted cases is R. v. German (1947), 89 C.C.C. 90, a decision of the Ontario Court of Appeal involving charges of dangerous driving and driving while intoxicated. Counsel for the appellant submitted that the Crown was improperly permitted to introduce opinion evidence of persons who had no special qualifications. This evidence related to whether the accused was intoxicated, and was in a fit condition to drive. The Court observed that there were several matters on which a person of ordinary intelligence may be permitted to give opinion evidence based on his personal knowledge, such as the identity of individuals, the apparent age of a person, the speed of a vehicle and whether a person was sober or not.
Robertson C.J.O. said (at p. 99):
I am sure there have been many cases where a witness has been asked whether a person was sober or not, and has been allowed to state what is after all, a matter of opinion, but the answer is given as if nothing but a mere question of fact was involved.
In the present case the evidence objected to is that of witnesses who saw the appellant and had opportunity of observing him. While some of the questions allowed to be answered were, I think, improperly framed, it was quite plain to the jury that these witnesses were ordinary observers applying their unskilled knowledge to what they actually saw, and, taken as a whole, I do not think any injustice was done by the occasional putting of a question that was unfortunately framed.
The case is of limited help as the degree of impairment was not really in issue.
German’s case was discussed in R. v. Marks,  O.W.N. 608, in which it was held that it was for the judge to decide whether in the light of the facts the police officer was “competent” to
give an opinion as to any condition of impairment by consumption of alcohol. On the evidence in that case the judge held that the officers were not competent because they did not actually observe the accused driving his car and because they disagreed both about the state of intoxication and about the accused’s ability to drive.
The next case is R. v. Zarins (1959), 125 C.C.C. 375, another impaired driving case, the judgment of the Ontario Court of Appeal being delivered by Porter C.J.O. Two short passages might be quoted (at pp. 380 and 382):
I would adopt certain language of Harvey C.J.A. in R. v. Cox 93 Can.C.C. 32 at p. 36,  1 D.L.R. 524 at p. 528, and say that the fact of intoxication under s. 222, and impairment under s. 223 “may well be determined by observance of the conduct of the person charged as to which anyone can speak.”
Following this decision [the decision in R. v. German, supra], I think that the evidence of the police officers as to intoxication and impairment was clearly admissible.
From the Ontario authorities one would conclude that opinion evidence as to drunkenness, and as to impairment, are currently both admissible.
In British Columbia (R. v. Beauvais,  3 C.C.C. 281 (B.C.S.C.)) McFarlane J. adopted the reasoning of the Court of Appeal in Ontario in R. v. German and held that the opinions of the constables was lawfully admissible evidence on which the magistrate could find impairment.
In Alberta, it has been held that the constables could describe the accused’s actions, appearance, language and general conduct and, in answer to a question framed as a question of fact, state the accused was drunk: R. v. Pollock (1947), 90 C.C.C. 171. In R. v. Cox (1948), 93 C.C.C., 32 (Alta. C.A.), Harvey C.J.A., delivering the judgment of the Court, said (at pp. 35-36):
It seems clear, however, that the purpose of the, prohibition of s. 285 is for the protection of people on the highway, and that when a person is in such a state of intoxication that his driving is a menace to the public safety, he must be intoxicated within the intention, and therefore the meaning, of the term as used in the section.
That fact may well be determined by observance of the conduct of the person charged as to which anyone can speak, and that too perhaps with greater certainty than by any conclusions from the percentage of alcohol in the blood.
In some of the other provinces the position is more narrowly circumscribed. For example, in Prince Edward Island, Campbell C.J. held in Giddings v. The King (1947), 89 C.C.C. 346 that, in cases where intoxication is the very issue, it is neither helpful nor permissible for witnesses to state their own opinions or conclusions as to the fact or degree of intoxication, at least unless they relate the detailed symptoms on which their conclusions are based. In R. v. Smith (1948), 17 Fortnightly L.J. 241, the same judge held that only evidence of actual symptoms could be regarded, and evidence that the accused was intoxicated should be eliminated. An equally restrictive view was taken by Hogarth D.C.J. in Grimsteit v. McDonald (1950), 96 C.C.C. 272: “My opinion has always been that it is for a witness to state the facts and for the Court to draw conclusions from those facts” (at p. 286).
A midway position was voiced by O’Hearn C.C.J. in R. v. MacDonald (1966), 9 Crim. L.Q. 239 (at p. 241):
I ruled that it would probably be improper for the witness to give as his opinion that the defendant’s ability to drive a motor vehicle was impaired by alcohol or a drug, as this might involve a conclusion of law, but that any adult person with sufficient experience of the world may be asked his opinion of a person’s condition with respect to intoxication.
Lord Parker, speaking on behalf of the Court-Martial Appeal Court in R. v. Davies,  1 W.L.R. 1111 was of opinion that a witness could
properly give his impression as to whether another had “taken drink”, but could not testify as to fitness or unfitness to drive. He reached his conclusion on two grounds (i) he is not in the expert witness category; (ii) that was the very matter the court had to determine on a charge of driving a vehicle on a road while unfit to drive through drink or drugs. The passage reads (at p. 1113):
The court has come clearly to the conclusion that a witness can quite properly give his general impression as to whether a driver had taken [a] drink. He must describe of course the facts upon which he relies, but it seems to this court that he is perfectly entitled to give his impression as to whether drink had been taken or not. On the other hand, as regards the second matter, it cannot be said, as it seems to this court, that a witness, merely because he is a driver himself, is in the expert witness category so that it is proper to ask him his opinion as to fitness or unfitness to drive. That is the very matter which the court itself has to determine. Accordingly, in so far as this witness and two subsequent witnesses, the lance-corporal and the regimental sergeant-major gave their opinion as to the appellant’s ability or fitness to drive, the court was wrong in admitting that evidence.
In R. v. Neil,  Crim. L.R. 698 a Courts-Martial Appeal Court (Winn, Widgery and Brabin JJ.) indicated that the scope of Davies “might call for consideration in future in relation to particular circumstances”. The Court in Neil upheld the conviction on the somewhat tenuous ground that the members of the Court Martial “were not invited or directed by the Judge‑Advocate to pay attention to opinion as distinct from observation”.
An informative discussion of the point under review comes from Eire, A.G. (Ruddy) v. Kenny (1959), 94 I.T.L.R. 185. Kenny was charged with driving a motor lorry while drunk. The prosecution proposed to ask a police witness whether “in his opinion the defendant was drunk and incapable of driving the vehicle”. The solicitor for the defend-
ant objected to the question and submitted that the witness “not being a doctor or like expert was not qualified or competent to give evidence of his opinion of the defendant’s condition”. The prosecution replied that evidence as to drunkenness or sobriety need not necessarily be that of a medical practitioner or similar witness but that any ordinary witness would be qualified to give evidence on such matters. The District Justice thereupon agreed to state a case for the opinion of the High Court. The question for decision was whether evidence by a member of the Garda Siochana was admissible of his opinion that the defendant driver by reason of his being drunk, was unfit to drive a mechanically propelled vehicle? It was held by Davitt P. and on appeal by the Supreme Court of Eire (Lavery and O’Daly JJ., Kingsmill Moore J., dissenting) that the question asked should be answered “Yes”. The evidence was admissible.
The same point arose in Northern Ireland in Sherrard v. Jacob,  N.I.L.R. 151 on a stated case. The Court of Appeal held that opinion evidence of the police officers as to drunkenness was admissible but (Lord MacDermott L.C.J., dissenting) opinion evidence of the police officers as to capability to drive was not admissible. The majority of the Court followed R. v. Davies.
The Australian case of Burrows v. Hanlin,  S.A.S.R. 54 held that mere opinion as to whether a man is drunk or whether he is capable of driving a motorcar, unsupported by facts, is not entitled to any weight. Murray C.J. said (at p. 55):
Evidence of opinion can be given by experts on questions of science, but as to whether a man is drunk or whether he is capable of exercising effective control over a motorcar, mere opinion, unsupported by facts (I think I may go so far as to say), is not admissible evidence.
The later case of R. v. Spooner,  V.R. 540 expressed a less strict view, with which I find myself much in accord. Sholl J. said (at p. 541):
I think I ought to say that my own view would be that it is not only a police officer who may be capable of expressing an opinion whether a man is so intoxicated as to be unable properly to drive a car. Many other persons have had experience in driving a motor-car, and have observed persons under the influencé of intoxicating liquor, and must, one would suppose, be in a position to form a view as to the capacity to drive. I see no magic myself in the fact that the witness is a police officer, or anything else. It depends largely, I suppose, on his actual knowledge of what is required in driving a motor car.
In R. v. Kelly,  V.R. 412, Smith J. expressed the opinion that if the Crown is merely seeking from a witness a compendious description of what he actually observed, evidence in such form is not properly to be regarded as opinion evidence and the law of evidence does not forbid the giving of evidence in such form. Moreover, the law of evidence does not require that a witness should be qualified as an expert before he testifies.
In Blackie v. Police,  N.Z.L.R. 910 the New Zealand Court of Appeal divided on whether an experienced traffic officer could give evidence as to whether a driver was so far intoxicated as to be incapable of having control of a vehicle. A majority of the Court held that a traffic officer or policeman who can show that he is sufficiently qualified by training or experience may be allowed to express his opinion in evidence as to a person’s capacity to drive. The Court held also that the fact that a witness is either a traffic officer or a policeman does not, however, automatically qualify him to give opinion evidence on this topic.
The Text Writers
Sir Rupert Cross in his work on Evidence (5th ed., 1979, p. 451) states that the existence of a particular issue may necessitate the reception of evidence which is not that of an expert and yet is nothing short of a witness’ opinion concerning an ultimate issue in the case. The author adds, (at p. 452), that, subject to the exceptional type of situation, it would seem that, if non‑expert opinion is in reality evidence of fact given ex necessitate in the form of evidence of opinion, there should be no question of its inadmissibility because it deals with ultimate issues.
Professor Cross continues (at p. 452):
This is borne out by the form of s. 3(2) of the Civil Evidence Act 1972, which suggests that no change in the law was intended:
It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on a relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
So far as criminal cases are concerned, the decisions on drunken driving indicate a difference of approach between the English and Northern Irish courts on the one hand, and the courts of Eire on the other.
Professor Cross suggests (at p. 453) two main and two subsidiary reasons for the exclusion of non-expert opinion: In the first place it is said that opinion evidence is irrelevant and that this is largely true of non-expert opinion on a subject requiring expertise as well as opinion evidence concerning matters which do not call for expertise. Secondly, it is said that the reception of opinion evidence would “usurp the functions of the jury” in the sense that the jury would be tempted blindly to accept a witness’ opinion. The two subsidiary reasons mentioned are the fact that a witness who merely speaks his opinion cannot be prosecuted for perjury, and the danger that the reception of such evidence might indirectly evade other exclusionary rules. Cross speaks of the first subsidiary reason as
one of “some antiquity” and suggests that there is more force in the second reason, but that “it has not been stressed by the judges”.
Professor Wigmore takes a diametrically opposed position. He states, (vol. 7, para. 1917, Chadbourn ed., 1978) that the disparagement of “opinion” always had reference to the testimony of a person who had no “facts” of his own observation to speak from, and the skilled witness was the person who had to be received by way of exception to that notion. Thus, when an ordinary or lay witness took the stand, equipped with a personal acquaintance with the affair and therefore competent in his sources of knowledge, the circumstances that incidentally he drew inferences from his observed data and expressed conclusions from them did not present itself as in any way improper. It would not occur to any judge that this witness was doing a wrong thing.
Wigmore refers to the theory that wherever inferences and conclusions can be drawn by the jury as well as by the witness, the witness is superfluous, the theory being that of the exclusion of supererogatory evidence.
Wigmore uses strong language in discussing the “usurp the functions of the jury” theory (para. 1920). The phrase, he says, is made to imply a moral impropriety or a radical unfairness in the witness’ expression of opinion. He says that “In this aspect the phrase is so misleading, as well as so unsound, that it should be entirely repudiated. It is a mere bit of empty rhetoric”. The author continues “There is no such reason for the rule, because the witness, in expressing his opinion, is not attempting to ‘usurp’ the jury’s function; nor could if he desired”.
Turning then to an attack of the other theory, which would deny opinions of the “very issue before the jury” Wigmore has this to say:
The fallacy of this doctrine is, of course, that, measured by the principle, it is both too narrow and too
broad. It is too broad, because, even when the very point in issue is to be spoken to, the jury should have help if it is needed. It is too narrow, because opinion may be inadmissible even when it deals with something other that the point in issue. Furthermore, the rule if carried out strictly and invariably would exclude the most necessary testimony. When all is said, it remains simply one of those impracticable and misconceived utterances which lack any justification in principle [para. 1921].
Law Reform Commission Reports
The Law Reform Commission of Canada has proposed an opinion rule based on facts perceived by the witness and on “helpfulness”:
Section 67. A witness other than one testifying as an expert may not give an opinion or draw an inference unless it is based on facts perceived by him and is helpful to the witness in giving a clear statement or to the trier of fact in determining an issue [Report on Evidence (1975), Evidence Code, s. 67].
The Ontario Law Reform Commission proposed the enactment of the following section (Draft Act, Section 14):
Where a witness in a proceeding is testifying in a capacity other than as a person qualified to give opinion evidence and a question is put to him to elicit a fact that he personally perceived, his answer is admissible as evidence of the fact even though given in the form of an expression of his opinion upon a matter in issue in the proceeding [Report on the Law of Evidence (1976), pp. 150-53].
A majority of the Federal/Provincial Task Force on Uniform Rules of Evidence favoured the adoption of the proposal of the Law Reform Commission of Canada, embodied in s. 67 of the Commission’s Evidence Code, rather than that of the Ontario Law Reform Commission. The majority opposed the proposal of the Ontario Law Reform Commission as being an enactment of the “collective facts rule” which allows non-expert opinion to be admitted on the basis that it is “a compendious mode of ascertaining the result of the actual observation of the witness”. The majority felt that such
an approach purported to draw an impossible and illogical distinction between “fact” and “opinion”. The Task Force observed:
Section 67 would allow a lay witness to testify in the form of opinion if it is relevant, within the realm of common experience and a shorthand expression of the witness’s personal observation.
I have attempted in the foregoing to highlight the opposing points of view as reflected in some of the cases, texts, and reports of the law reform commissions.
We start with the reality that the law of evidence is burdened with a large number of cumbersome rules, with exclusions, and exceptions to the exclusions, and exceptions to the exceptions. The subjects upon which the non-expert witness is allowed to give opinion evidence is a lengthy one. The list mentioned in Sherrard v. Jacob, supra, is by no means exhaustive: (i) the identification of handwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person—e.g. whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things—e.g. worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance.
Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear.
To resolve the question before the Court, I would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though
probative, the evidence must be excluded by a clear ground of policy or of law.
There is a direct and logical relevance between (i) the evidence offered here, namely, the opinion of a police officer (based on perceived facts as to the manner of driving, and indicia of intoxication of the driver) that the person’s ability to drive was impaired by alcohol, and (ii) the ultimate probandum in the case. The probative value of the evidence is not outweighed by such policy considerations as danger of confusing the issues or misleading the jury. It does not unfairly surprise a party who had not had reasonable ground to anticipate that such evidence will be offered, and the adducing of the evidence does not necessitate undue consumption of time. As for other considerations such as “usurping the functions of the jury” and, to the extent that it may be regarded as a separate consideration, “opinion on the very issue before the jury”, Wigmore has gone a long way toward establishing that rejection of opinion evidence on either of these grounds is unsound historically and in principle. If the court is being told that which it is in itself entirely equipped to determine without the aid of the witness on the point then of course the evidence is supererogatory and unnecessary. It would be a waste of time listening to superfluous testimony.
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.
I agree with Professor Cross (at p. 443) that “The exclusion of opinion evidence on the ultimate
issue can easily 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 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 [at p. 448].
Before this Court counsel for the appellant took the position that although opinion evidence by non-experts may be admissible where it is “necessary” the opinions of the police officers in this case were superfluous, irrelevant and inadmissible. I disagree. It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state. This is because it may be difficult for the witness to narrate his factual observations individually. Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witness to narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicated to some particular extent. If a witness is to
be allowed to sum up concisely his observations by saying that someone was intoxicated, it is all the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree. I agree with the comment of Lord MacDermott L.C.J. in his dissent in Sherrard v. Jacob, supra:
I can find no good reason for allowing the non-expert to give his opinion of the driver’s observable condition and then denying him the right to state an opinion on the consequences of that observed condition so far as driving is concerned [at p. 162].
Nor is this a case for the exclusion of non-expert testimony because the matter calls for a specialist. It has long been accepted in our law that intoxication is not such an exceptional condition as would require a medical expert to diagnose it. An ordinary witness may give evidence of his opinion as to whether a person is drunk. This is not a matter where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts. Intoxication and impairment of driving ability are matters which the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience. The guidance of an expert is unnecessary.
If that be so it seems illogical to deny the court the help it could get from a witness’ opinion as to the degree of intoxication, that is to say whether the person’s ability to drive was impaired by alcohol. If non-expert evidence is excluded the defence may be seriously hampered. If an accused is to be denied the right to call persons who were in his company at the time to testify that in their opinion his ability to drive was by no means impaired, the cause of justice would suffer.
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.
I would adopt the following passage from the reasons of Lord MacDermott in Sherrard v. Jacob, supra:
The next stage is to enquire if the opinion of the same witnesses was also admissible on the question whether the respondent, if he was under the influence of drink, was so to an extent which made him incapable of having proper control of the car he was driving. On this it seems to me that the reasoning which has led me to the conclusion just stated applies as well to this branch of the matter. The driving of motor vehicles is now so much a matter of everyday experience for ordinary people that I find it difficult to see how inferential or opinion evidence as to being (a) under the influence of drink and (b) thereby unfit to drive a car can be placed in different categories for the purpose of determining admissibility. The one as much as the other seems to be within the capacity of the non-expert to form a reasonable conclusion [at p. 162].
A non-expert witness cannot, of course, give opinion evidence on a legal issue as, for example, whether or not a person was negligent. That is because such an opinion would not qualify as an abbreviated version of the witnesses factual observations. An opinion that someone was negligent is partly factual, but it also involves the application of legal standards. On the other hand, whether a person’s ability to drive is impaired by alcohol is a question of fact, not of law. It does not involve the application of any legal standard. It is akin to an opinion that someone is too drunk to climb a ladder or to go swimming, and the fact that a witness’ opinion, as here, may be expressed in the exact words of the Criminal Code does not change a factual matter into a question of law. It only reflects the fact that the draftsmen of the Code employed the ordinary English phrase: “his ability to drive…is impaired by alcohol” (s. 234).
In short, I know of no clear ground of policy or of law which would require the exclusion of opinion evidence tendered by the Crown or the defence as to Mr. Graat’s impairment.
I conclude with two caveats. First, in every case, in determining whether an opinion is admissible,
the trial judge must necessarily excercise a large measure of discretion. Second, there may be a tendency for judges and juries to let the opinion of police witnesses overwhelm the opinion evidence of other witnesses. Since the opinion is admitted under the “compendious statement of facts” exception, rather than under the “expert witness” exception, there is no special reason for preferring the police evidence over the “opinion” of other witnesses. As always, the trier of fact must decide in each case what weight to give what evidence. The “opinion” of the police officer is entitled to no special regard. Ordinary people with ordinary experience are able to know as a matter of fact that someone is too drunk to perform certain tasks, such as driving a car. If the witness lacks the relevant experience, or is otherwise limited in his testimonial capacity, or if the witness is not sure whether the person was intoxicated to the point of impairment, that can be brought out in cross-examination. But the fact that a police witness has seen more impaired drivers than a non-police witness is not a reason in itself to prefer the evidence of the police officer. Constable McMullen and Sergeant Spoelstra were not testifying as experts based on their extensive experience as police officers.
There was some confusion about this matter in this case as appears from the following cross‑examination of Mr. Wilson:
Q. …And of course you’ve not and never have been a Police Officer. Do you agree or disagree with me?
A. No. No.
Q. You have never been a Police Officer?
Q. And you’re not in the habit of checking people as to the amount of alcohol that is consumed in order to make him impaired. Do you agree or disagree with me?
A. I have to agree with you.
Q. Yes. So you’re really not in a position to tell us whether or not he was impaired or not impaired by alcohol. Do you agree or disagree with me?
A. I was only…
Q. …But of course you were in no position to judge as to whether or not he was impaired. Do you agree or disagree with me?
A. I don’t have any qualifications in that regard I guess.
Mr. Wilson does not need any special qualifications. Nor were the police officers relying on any special qualifications when they gave their opinions. Both police and non-police witnesses are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly. Trial judges should bear in mind that this is non-expert opinion evidence, and that the opinion of police officers is not entitled to preference just because they may have extensive experience with impaired drivers. The credit and accuracy of the police must be viewed in the same manner as that of other witnesses and in the light of all the evidence in the case. If the police and traffic officers have been closely associated with the prosecution, such association may affect the weight to be given to such evidence.
The trial judge was correct in admitting the opinions of the three police officers and Mr. Wilson.
For the foregoing reasons, as well as for the reasons given by Chief Justice Howland, I would dismiss the appeal.
Solicitors for the appellant: Greenspan, Moldaver, Toronto.
Solicitor for the respondent: The Attorney General for the Province of Ontario.