Lay-Opinion

Canada v. McDonald, 2019 ONCA 367 (CanLII)

[19] Specifically, Mr. McDonald argued the following. First, that the trial judge erred by improperly relying on Canadian safety standards and lay opinion evidence in determining that Mr. McDonald’s actions constituted a marked and substantial departure from the standard of a reasonable person in the circumstances.

[20] We do not agree that the trial judge made any error in taking the safety standards into account. The incident occurred in Canadian waters. Furthermore, even in the absence of any regulation, it would have been open to the trial judge to find the absence of lifejackets to be a significant factor in his analysis of the standard of care applicable when crossing a navigable river in an open water craft.

[21] Similarly, the trial judge was entitled to accept the observations of a witness that the Sea-Doo capsized as an observable consequence of becoming unbalanced from having too many passengers.

[22] Second, Mr. McDonald argued that the trial judge improperly relied on a K.G.B. statement from the surviving witness to the effect that the Sea-Doo capsized once prior to the fatal incident. The objection is purely speculative and we do not accept it. The trial judge specifically refused to admit the surviving witness’s police statements and there is no mention of that evidence in his reasons for conviction. The fact that the trial judge made a stray reference to the first capsize event in his sentencing reasons does not lead to the conclusion that he also considered it in his reasons for conviction.

[23] Third, Mr. McDonald objects to the admission of a statement he made to an EMT worker that was recorded while he was seated in the backseat of a police cruiser, and that was overheard by a police officer standing outside of the cruiser. There is no need to address this issue in light of the fact that the evidence received was duplicative of evidence from other sources.

[24] The appeal from conviction is dismissed.

Jones v. Niklaus, 2008 ONCA 504 (CanLII)

[27] Counsel for the appellant raises three arguments in support of his submission that the jury’s finding of contributory negligence is unreasonable. First, he argues that the jury’s conclusion on this issue cannot stand because the trial judge failed, in his charge, to caution the jury regarding the relative reliability of children’s evidence. According to the appellant, since the jury’s finding of contributory negligence was based solely on the evidence of the Niles children, that finding was unreasonable given this omission in the jury charge. Second, the appellant argues that the jury’s findings that Ms. Jones failed to keep a proper lookout and failed to keep proper control of her car are also unreasonable because they are based upon lay opinion evidence from the Niles children, taken primarily from their February 2002 statements, referred to above. According to the appellant, since the Niles children were not qualified to offer these opinions, they were “not entitled” to give such evidence in the first place or, if they were entitled to give the evidence, such evidence should receive no weight. Third, the appellant also attacks the jury’s finding that Ms. Jones failed to apply her brakes on the basis that it finds no support in the evidentiary record. For the following reasons, I disagree with these submissions and would decline to interfere with the jury’s finding of contributory negligence.