R. v. Jenkins, 2024 ONCA 533

Blog Post By: Gabe Nisker

The takeaway: Courts need to be careful about the use of lay opinion evidence.

The conclusion: In this Ontario Court of Appeal decision, the court set aside convictions
and ordered a new trial for Mr. Jenkins, who had previously been convicted on several
charges pertaining to drug traficking.

The full story: In the appeal, Mr. Jenkins’s counsel put forward that fve police oficers gave
what’s called “lay opinion evidence” that was improperly admitted in the initial trial. Lay
opinion evidence is opinion evidence not given by an expert, and it is only permissible
under a limited number of circumstances outlined in the case of Graat v. The Queen. Here,
the opinion evidence in question was that these oficers found Mr. Jenkins’s conduct to be
consistent with drug traficking.

The question before the court was whether these opinions could be permissible. In each
instance, the oficer had been asked a question like “What do you make of this behaviour in
your experience?” and ofered his opinion thereafter.

Justice Copeland, relying on a previous case (R. v. Nguyen, 2023 ONCA 531), pointed to the
various issues with this evidence. First, the Crown had not sought to qualify these
surveillance oficers as oficial experts on indicators of drug traficking. Next, the jury could
weigh the interactions as described by the officers without their additional conclusive
opinions. Without those directly stated opinions, the officers could still clearly convey what
they had seen, and the jury could still understand what was put before them.

However, to distinguish this case from Nguyen and others, Justice Copeland declined to
apply the curative proviso and ordered a new trial. The curative proviso would allow for the
admission of the opinion evidence anyway, if the Crown can meet the burden of showing a
minor or harmless error or if they show that the case was so overwhelming against the
person appealing their conviction (here, Mr. Jenkins).

Justice Copeland held that the signifcance of having this trial in front of a jury without the
trial judge’s caution about the evidence showed great potential for misused evidence
worthy of a new trial. Weighing the whole of the error, Justice Copeland saw that it was not
minor or harmless. Further, to the use in the instance of an overwhelming case against Mr.
Jenkins, Justice Copeland found that the number of live issues, including questions of
credibility, meant that there was a strong, but not overwhelming, case. For that reason, the
appeal was allowed, the convictions set aside, and a new trial was ordered.