Wednesday, August 27, 2014
R. v. M.C., 2014 ONCA 611:
 The law of evidence distinguishes between fact and opinion. The distinction seems more and ultimately one of convenience rather than of objective reality. All sensory data is mediated by our powers of perception, assimilation and expression. But the distinction remains and is expressed in the rule that generally, but not universally, excludes evidence of opinion.
 Among the exceptions to the opinion rule are the opinions of experts. Duly qualified experts may testify about subjects that are within their field of expertise, logically relevant to a material issue in the proceedings, and outside the experience and knowledge of the trier of fact: Mohan, at p. 20.
 Experts combine information accumulated from their own work and experience, marry it with evidence adduced through exhibits, admissions and the testimony of other witnesses in the proceedings, and express an opinion about a factual inference that should be drawn from the accumulated materials: Abbey, at para. 71. These opinions are evaluated by the trier of fact, like any other evidence admitted in the proceedings, in determining whether the allegations contained in the indictment have been proven beyond a reasonable doubt.
 The factual premise or construct to which the expert applies his or her expertise must be established, however, by evidence that is otherwise properly admissible in the proceedings. Mere reliance by the expert on a state of facts as the basis for his or her opinion does not amount to evidence much less proof of those facts. For example, a psychiatrist proffers an opinion about criminal responsibility based on an account of events provided to him or her by an accused. The account relied upon must be established by other admissible evidence: R. v. Abbey,  2 S.C.R. 24, at p. 46 (Abbey '82); R. v. Boucher, 2005 SCC 72,  3 S.C.R. 499, at para. 31; and R. v. D. (D.), 2000 SCC 43,  2 S.C.R. 275, at para. 55. Where the factual premise of the expert's opinion is not established by otherwise admissible evidence, the opinion is entitled to less, in some cases, to no weight:Abbey '82, at p. 46; and R. v. Lavallee,  1 S.C.R. 852, at p. 893.
 Deciding the admissibility of expert opinion evidence involves two steps. The first requires a determination of whether the conditions precedent to admissibility have been met. The second, only undertaken on satisfaction of the first, consists of a cost-benefit analysis that asks whether the benefits of receiving the evidence to a correct decision exceed the costs to the litigation process of admitting the evidence:Abbey, at para. 76.
 The criteria applicable to the first step in the admissibility inquiry are:
iii. absence of an exclusionary rule; and
iv. a properly qualified expert.
Mohan, at p. 20; and Abbey, at paras. 75 and 80.
 Among the Mohan criteria, two are of particular importance in this case: the absence of an exclusionary rule, and a properly qualified expert.
 The absence of an exclusionary rule refers to an exclusionary rule other than the opinion rule itself: Abbey, at para. 80. For example, expert opinion evidence of an accused's disposition must not contravene the bad character rule.
 Whether a proposed witness is a properly qualified expert about subject-matter that is properly the subject of expert opinion evidence is determined on avoir dire after counsel proffering the evidence has defined the nature and scope of the proposed opinion: Abbey, at paras. 62-63; R. v. Marquard,  4 S.C.R. 223, at pp. 242-244; and R. v. McIntosh (1997), 35 O.R. (3d) 97 (C.A.), at p. 104. The trial judge's task extends beyond deciding whether the proposed expert is qualified to proffer an opinion. The judge should also determine the nature and scope of the expert evidence and ensure that the expert's reach does not exceed his or her grasp or extend beyond boundaries established by the trial judge: Abbey, at para. 62; R. v. Sekhon, 2014 SCC 15, at paras. 46-47; and Marquard, at pp. 242-244.
 An expert may refer to and be cross-examined upon authoritative works in the field. But without express adoption of the content by the expert, the opinions expressed in the works cannot become expert evidence for the trier of fact to consider in reaching their decision: Marquard, at p. 251. A review, even an extensive review by an expert of literature in a related field does not, without more, permit the expert to proffer an opinion on a subject outside the area of the expert's field of expertise: Mathisen, at para. 126.
 Evidence that meets the Mohan criteria will not necessarily be received and available for consideration by the trier of fact. At the second stage, the trial judge exercises a "gatekeeper" function. The judge decides whether the expert opinion evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to that same process that may ensue from the introduction of that very evidence: Abbey, at para. 76. It is only where the benefits gained by the introduction of the evidence predominate over the costs associated with its introduction that the evidence will be admitted.
 To determine the "benefits" associated with the introduction of expert opinion evidence, the judge considers the probative value of the evidence, the significance of and the issue to which the evidence is relevant. Potential probative value includes an assessment of the reliability of the evidence, not merely of its subject-matter, but also the expert's methodology, expertise and objectivity: Abbey, at para. 87.
 On the "cost" side, the trial judge considers the consumption of time, prejudice and confusion. The trier of fact may not be adequately equipped to effectively and critically assess the evidence. The underlying material may be complex, the witness' jargon impenetrable, and the evidence resistant to effective cross-examination: Abbey, at para. 90.
R. v. MacDonald, 2014 ONCA 610:
 The sole issue at this trial was identification and the only evidence linking the appellant to the alleged offences was that of the witness Reeves. In these circumstances, a careful instruction on identification evidence was required. In my view there were several significant deficiencies in the trial judge's instruction to the jury on the issue of identification and the cumulative effect of those errors is fatal to the convictions.
 First, the trial judge failed to warn the jury of the limited weight to be accorded to the in-dock identification. As explained in R. v. Hibbert,  2 S.C.R. 445, at para. 50: "[T]he danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it." The respondent points out that at trial, the Crown did not rely on the in-dock identification in his closing address to the jury. In my view, that did not absolve the trial judge of the duty to give the usual instruction.
 Second, the trial judge failed to warn the jury that the photo lineup identification could have been contaminated by the identification at the 7/11 store. Reeves did the photo lineup within days of the meeting at the 7/11 store and the jury should have been cautioned that the reliability of her identification of the appellant as the robber could be undermined by the more recent encounter. The respondent points out that this issue was raised by defence counsel in his closing submissions. Again, however, that did not absolve the trial judge of the duty to explain the risk of contamination.
 Third, while the trial judge did explain that it is possible for an honest witness to make an identification error and that an apparently convincing witness can be mistaken, his instruction fell short of a caution along the lines mandated by R. v. Hibbert, at para. 52, as to the "very weak link between the confidence level of a witness and the accuracy of that witness". See also R v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 31. In my view, such a caution was required in the circumstances of this case, where the entire case against the appellant rested on the reliability of Reeves' evidence.
 Fourth, even the caution that the trial judge did give was undermined when he instructed the jury to "use your common sense" and to look at Reeves' "reaction" to the photo lineup when considering the significance of what he described as certain "considerable differences" in the description she had given of the assailant. While juries are generally encouraged to use their common sense, the very reason for special caution with respect to identification evidence is that such evidence poses problems that fall outside the common experience and knowledge of jurors. There is a risk that by using what appears to be "common sense", jurors will give eyewitness identification weight that it does not deserve. In my view, in the circumstances of this case, the jury could have understood this part of the trial judge's instruction to be an invitation to put weight on the level of Reeves' confidence in her identification of the appellant, which is the very matter that the jury should have been cautioned against.
 Fifth, the trial judge failed to instruct the jury that the fact the appellant has blue eyes could be sufficient to exclude her as the assailant given the emphasis placed by Reeves on the strikingly dark eyes of the assailant.
Monday, August 25, 2014
Friday, August 22, 2014
Density Group Limited v. HK Hotels LLC, 2014 ONCA 605:
(1) SUMMARY JUDGMENT UNDER HRYNIAK
 As noted above, the Supreme Court's decision in Hryniak greatly expands the use of the summary judgment process for the resolution of civil disputes.
 The decision makes it clear that the new fact-finding powers available to judges under Rules 20.04 (2.1) and (2.2) are discretionary and presumptively available: para. 45.
 The Court directs that deference is owed to motion judges on summary judgment motions:
 In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law, should not be overturned, absent palpable and overriding error [citation omitted].
 Similarly, the question of whether it is in the "interest of justice" for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.
 Provided that it is not against the "interest of justice", a motion judge's decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.
 The Supreme Court recognizes at para. 60 of its decision that it may not be in the "interest of justice" to grant summary judgment in favour of a single defendant if the matter must still go to trial:
… [I]f some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant.
 On the other hand, summary judgment may be appropriate even if some claims must still proceed to trial, as was the case in Hryniak itself. The Court recognizes that "the resolution of an important claim against a key party could significantly advance access to justice": para. 60.
 The Court also notes that "[p]rompt judicial resolution of legal disputes allows individuals to get on with their lives": para. 25.