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.