R. v. FREEDLAND, 2023 ONCA 386, MAY 30, 2023.

FACTS: The accused was convicted of the offence of counselling extortion. At his trial, a store clerk, who sold a shotgun to the accused, testified that the accused seemed to be “inexperienced with firearms”. The trial judge interrupted and indicated that the store clerk could not give opinion evidence about whether individuals were, or were not, experienced with firearms. He repeated this instruction in his jury charge.

The accused appealed from conviction.

HELD: The appeal was allowed. The Court of Appeal concluded that the store clerk’s evidence was admissible (at paragraphs 26 and 27):

The store clerk’s opinion evidence was admissible. Although he was not asked directly about his experience, it is clear from his testimony that he had considerable experience with customers seeking to purchase firearms. As he explained in his evidence, part of his job involved questioning customers to get a sense of their level of experience and expertise with firearms so as to be able to suggest the most suitable firearm.

Given the store clerk’s experience as a gun salesman, it was open to him to present his observations of the appellant’s behaviour and conduct by way of an opinion as to the appellant’s experience as a gun handler. There was no danger that the jury would have been misled by this evidence. The trial judge erred in instructing the jury to disregard the store clerk’s evidence about the appellant’s apparent lack of experience with firearms.