Demonstrative Aids in Opening Addresses

In Robichaud et al v. Constantinidis et al., 2019 ONSC 5396, there was a dispute over whether plaintiffs’ counsel could make use of demonstrative aids in an opening address to the jury.

The particular items in question were photographs showing the plaintiff, her son, and her dog, as well as charts summarizing prescriptions and visits to health care providers.

Justice Schabas noted that demonstrative evidence must not be misleading, inaccurate or inflammatory. It must not distract or detract from the actual evidence. If the prejudicial effect of demonstrative evidence outweighs its probative value, then it should not be admitted.

Further, Justice Schabas stated, while the scope of an opening is up to counsel, caution must be exercised to not get into areas that cannot be proven or put in as evidence. Otherwise, the integrity of the trial and the evidentiary process are jeopardized.

Plaintiffs’ counsel was not permitted to show the photographs in the opening. Justice Schabas said that they added little. Further, there would be little prejudice to the plaintiffs since the photographs could be admitted during the course of the trial if they were properly proven.

A prescription summary chart could also not be shown to the jury in the opening. This chart was not simply a factual chronology of the plaintiff’s prescriptions. There were descriptions of why a prescription was provided. The accuracy of the chart was in dispute.

Plaintiffs’ counsel was permitted to use a chart showing medical attendances. The chart was a factual listing which could be confirmed by the plaintiff and by medical professionals. Any issues regarding the completeness of the chart could be raised in the evidence.