R. v. Van – A Closely Divided Court Allows Opinion Evidence Through

The Supreme Court’s decision last week in R. v. Van, 2009 SCC 22, was a deeply divided one: the first 5-4 split of the Supreme Court since Justice Cromwell joined the bench. This post will concern itself with the majority opinion in the case.

The facts are as follows: the complainant was stabbed, robbed, and left to die in his apartment, but survived, and identified Mr. Van as the attacker. At trial, Van claimed that the complainant was lying and that loan sharks were actually responsible for the attack. He supported this argument with the testimony of a police officer who outlined the police’s procedure following the attack (including their initial suspicion that the complainant was, in fact, stabbed by loan sharks). During his testimony, that police officer made several statements that were either hearsay evidence or opinion evidence. The judge did not warn the jury to exclude this evidence when making their decision. Mr. Van was found guilty of attempted murder and robbery, but his charges were overturned by the Ontario Court of Appeal.

The most problematic moment of the officer’s testimony was when he said “in my opinion, [the defendant] is the one that is responsible for this act.” Opinion evidence of this nature can unduly influence a jury, because they can be led to believe that the officer might possess evidence they are not sharing at trial which would otherwise make the defendant’s guilt obvious.

However, the majority, led by Lebel J. found that in this instance the prejudicial effect of the officer’s testimony was insignificant enough, and the defence counsel’s lack of complaint damning enough, that the convictions should be restored. They noted that much of the hearsay evidence introduced by the officer was introduced as non-hearsay by other witnesses at trial. At paragraph 39, Lebel J. explains why, despite the trial judge’s error in not including an instruction to the jury specifically addressing the officer’s opinion eivdence, in this instance the lack of an instruction was not particularly damning.

Det. Sgt. Nealon was relating to the jury the reasons for which he and his partner changed the focus of their investigation from known loan-shark enforcers to Mr. Van. In so doing, it would be natural for him to suggest that he believed he was pursuing the appropriate leads by investigating Mr. Van. It would come as no surprise to a jury that a police officer will investigate the person that he or she thinks is most likely to be guilty. Furthermore, the trial judge had instructed the jury at numerous points in his charge that it was their opinion of the evidence, and only theirs, that mattered.

Ultimately, the ruling is a pragmatic one, given the respondent’s relatively obvious guilt in the matter and the near-farcical nature of the defense. At paragraph 44, Lebel J. makes his disbelief at Van’s defense clear:

…he respondent seeks to impugn Mr. Kong’s credibility by pointing to his inability to accurately describe his injuries in a manner consistent with the medical records. The respondent notes that Mr. Kong did not testify that he had been stabbed on the left chest as well as the right, and did not say that he had been stabbed in the abdomen causing harm to his intestines. The medical evidence, however, clearly showed that these injuries had occurred. With respect, I must confess that I find this argument bordering on absurd… one would not expect the victim of an attack so severe as this to be cognizant of each and every injury he sustained.

For these reasons, although the acceptance of hearsay and opinion evidence in this instance is problematic, Van will likely prove to be poor precedent for future appellants seeking to broaden the scope of allowable evidence.