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Evidence - Collateral Fact Rule. R. v. B.B.
In R. v. B.B. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions for "incest and sexual interference" where the defendant was "sentenced to six years’ imprisonment and subjected to various ancillary orders, including a lifetime Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) registration order".
The court considered CCC s.276 ['Evidence of complainant’s sexual activity'] issues, here intertwined with the 'collateral fact rule':a. The s. 276 voir dire
[22] The proposed defence evidence was previewed during a voir dire, as part of an omnibus defence application under s. 276 of the Criminal Code.[5]
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[28] The trial judge relied on R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal refused, [1993] S.C.C.A. No. 26, where in a brief oral decision this court held that cross-examination directed at establishing “a pattern of fabrication by the complainant of similar allegations of sexual assault against other men” was something that “should not be encouraged unless the defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false.” The trial judge concluded that the evidence adduced on the voir dire did not establish that S.B.’s account of the October 2018 incident was “demonstrably false”, in the sense of being “undeniably untrue”.
[29] The appellant contends that the trial judge erred by reaching this conclusion. Specifically, he argues that the requirement in Riley that the defence be “in a position” to establish the demonstrable falsity of a complainant’s other allegation can be satisfied by the defence showing that it intends to adduce evidence that could lead the trier of fact to find that the other allegation is false. He distinguishes the situation here from that in R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115 on the basis that the accused in M.T. did not intend to call any witnesses who might establish the falsity of the other allegations. As the appellant argues in his factum:[B]ecause defence counsel was in a position to establish the falsity of the October 2018 allegation through the proposed cross-examination and evidence, she should have been permitted to do so. Unlike M.T., this was not a case where the defence had no intention of demonstrating falsity. It would be a misreading of Riley and subsequent case law to hold that defence counsel had to prove that the October 2018 allegation was false at the voir dire, rather than simply that she was in a position to do so at trial. [Emphasis in original.] [30] The appellant also emphasizes that unlike in Riley, and in most of the subsequent cases where this court has applied Riley, he was seeking to establish that S.B. had made a false allegation against him, rather than against a third party.
[31] Riley was recently considered by the Newfoundland and Labrador Court of Appeal in R. v. Regular, 2026 NLCA 1. The majority allowed the Crown’s appeal from the accused’s acquittal, finding that the evidence of the complainant’s allegations against a third party should not have been admitted. Writing for the majority, Knickle J.A. interpreted the “demonstrably false” standard in Riley as requiring the accused to positively establish the falsity of the allegations on the admissibility voir dire. She observed at para. 58:In the absence of evidence like a recantation, it may be very difficult to prove that allegations are false. If it is only necessary to establish that allegations “may” be false because of inconsistencies to be admissible, this will result in a complainant being subjected to having the veracity of the allegations tested as if she were at trial for those allegations. Evidence that only illustrates that a complainant is incorrect on certain details, such as timing or location, is not evidence that a complainant fabricated allegations. [32] Noel J.A. dissented, in part because he disagreed with the majority’s interpretation of the “demonstrably false” standard in Riley. Citing the Supreme Court of Canada’s decision in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, he stated, at para. 236:The “demonstrably false” standard must … be consistent with the Supreme Court of Canada’s statement in Arp that “an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to ‘increase or diminish the probability of the existence of a fact in issue’”. [Citations omitted; emphasis in original.] [33] However, Noel J.A. agreed with the majority that the “demonstrably false” standard sets a “high bar” and that “the indicia of falsity must be compelling and significant”: Regular, at paras. 234-35, per Noel J.A. (dissenting).
[34] The Newfoundland and Labrador Court of Appeal’s decision in Regular has been appealed as of right to the Supreme Court of Canada, and the appeal is scheduled to be heard on November 2, 2026.
[35] Until the Supreme Court provides further guidance on this issue, I continue to be bound by this court’s prior decisions that have interpreted and applied Riley. This court has explained the rule in Riley as rooted in the collateral fact rule: Riley, at pp. 152-154; R. v. B. (A.R.) (1998), 1998 CanLII 14603 (ON CA), 41 O.R. (3d) 361 (C.A.), at p. 367, aff’d 2000 SCC 30, [2000] 1 S.C.R. 781; R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 63. As Rosenberg J.A. explained in R. v. Pargelen (1996), 1996 CanLII 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at p. 516:The effect of the collateral fact rule is that, subject to certain exceptions, a party is not entitled to introduce extrinsic evidence to contradict the testimony of an adversary’s witness unless that extrinsic evidence is relevant to some issue in the case other than merely to contradict the witness. [36] Applications of the collateral fact rule involve “the general discretion of a trial judge to exclude evidence where its probative value is outweighed by its prejudicial effect”: B. (A.R.), at p. 367. As Trotter J.A. observed in R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 72, leave to appeal refused, [2020] S.C.C.A. No. 87:Because the collateral facts rule is intertwined with trial management considerations, trial judges exercise considerable discretion in its application, which is entitled to deference. [Citation omitted]. [37] The collateral fact rule is a rule of general application, not one limited to sexual offence prosecutions or sexual assault allegations: see e.g. R. v. Strojny, 2019 ONCA 329, at paras. 61-67. However, Riley is most often cited and relied on cases where, as here, an accused person charged with sexual offences seeks to prove that the complainant made false sexual assault allegations on other occasions. In this context, the accused’s ability to adduce evidence of other sexual activity by the complainant is regulated by s. 276 of the Criminal Code, which also requires trial judges to balance the probative value of evidence against its prejudicial effect: see s. 276(2).
[38] Riley was not decided under s. 276, and this court has previously held that “resort to s. 276 is not necessary” in situations where Riley applies: see B. (A.R.), at p. 365. However, in cases where s. 276 does apply there is no need for trial judges to conduct a separate Riley analysis, since the relevant factors under Riley must also be considered in the s. 276 analysis, along with the other factors listed in s. 276(3). . R. v. S.R.
In R. v. S.R. (Ont CA, 2023) the Court of Appeal, while characterizing the issue as one of 'confirmatory evidence', may have breached the general rule against collateral fact evidence:[7] We disagree. We start with the well-established principle that evidence can provide confirmatory weight even if it does not directly “confirm the key allegations of sexual assault” or “directly implicate the accused”, where it is capable of confirming or supporting certain aspects of a witness’s credibility or reliability in the context of the specific challenges made by defence counsel: R. v. Primmer, 2021 ONCA 564, at paras. 33, 38-42, leave to appeal refused, [2021] S.C.C.A. No. 462, citing R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568; R. v. H.P., 2022 ONCA 419, 414 C.C.C. (3d) 395, at para. 69; R. v. J.B., 2022 ONCA 214, at paras. 34 and 39. As this court recently reiterated in R. v. G.H., 2023 ONCA 89, at para. 20, citing Primmer at paras. 31-33, 39, “Deciding whether evidence is confirmatory of the allegations made by a complainant is part of the broader assessment of the complainant’s credibility and reliability that trial judges must make based on the entirety of the evidence.”
[8] A trial judge is not obliged to find corroboration of a sexual assault complainant’s evidence: H.P., at para. 68. Here, the trial judge sought confirmatory evidence because she was not prepared to convict the appellant on the basis of only the complainant’s evidence, given the various issues that she addressed in her reasons as we earlier referenced. She was satisfied that I.T.’s evidence concerning the appellant’s confession served to “corroborate” the complainant’s testimony of all the offences. The trial judge concluded that “[a]ny credibility concerns arising from the inconsistencies in C.O.’s evidence are alleviated because I accept the evidence of I.T.” We see no error in the trial judge’s confirmatory use of I.T.’s evidence. . Cann v. Ontario College of Teachers
In Cann v. Ontario College of Teachers (Div Court, 2022) the Divisional Court considers an Ontario College of Teachers Act (OCTA) appeal from the revocation of a teacher's "certificate of qualification and registration". In these quotes the court endorses the utility for credibility findings of collateral facts. There was no mention of the 'collateral fact rule':[56] Examining the consistency between what the witness says during examination, and what the witness has said on other occasions, is a valuable means of assessing the credibility of a witness: R. v. G.(M.) 1994 CanLII 8733 (ON CA), 1994, 93 C.C.C. (3d) 347, 73 O.A.C. 356 (Ont. C.A.), at para. 27; R. v. A.M., 2014 ONCA 769, 123 O.R. (2d) 536, at para. 12. . R v Sanderson
In R v Sanderson (Ont CA, 2017) the Court of Appeal cites the collateral fact rule as follows:[47] Watt’s Manual of Criminal Evidence (Toronto: Carswell, Thomson Canada Limited, 2002), describes the rule as follows at para. 22.03, p. 265:The collateral facts rule prohibits the introduction of evidence for the sole purpose of contradicting a witness’ testimony concerning a collateral fact. The rule seeks to avoid confusion and proliferation of issues, wasting of time and introduction of evidence of negligible assistance to the trier of fact in determining the real issues of the case. It endeavours to ensure that the sideshow does not take over the circus. In general, matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence. . R v Pilgrim
In R v Pilgrim (Ont CA, 2017), without referring to it as such, the court elaborates and applies the 'collateral fact rule' (aka 'collateral evidence rule'), that a witness may not be discredited or prejudiced on facts immaterial to the case:[55] It did not end there. In his Reasons for Sentence, the trial judge treated the exposure of the children to danger as “a significant aggravating factor.” This was a dominant theme in his reasons. Although the trial judge was “reluctant to find this conduct to have been abuse of a person under 18 within section 718.2(a)(ii.1) of the Criminal Code,” he nevertheless found “the conduct deplorable in the extreme.”
[56] This characterization – “conduct deplorable in the extreme” – may well have been fair. This feature of the case was a significant aggravating factor on sentencing. But this only confirms the seriously prejudicial nature of this evidence at trial.
[57] Relying on R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293, at pp. 1310-11, Ms. Shaikh argues that this evidence was admissible and that the trial judge properly restricted its use to merely assessing Mr. Pilgrim’s credibility. See also R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 63. However, before evidence of this nature may be used for this limited purpose, it must be “properly admissible as part of the narration of the relevant events”: see R. v. Teresinski (1992), 70 C.C.C. (3d) 268 (Ont. C.A.), at p. 278, leave to appeal refused, [1992] S.C.C.A. No. 147. See also R. v. Hogan (1982), 2 C.C.C. (3d) 557 (Ont. C.A.), at pp. 564-65; R. v. Cameron (1995), 1995 CanLII 1283 (ON CA), 22 O.R. (3d) 65 (C.A.), at pp. 72-73; and R. v. Sheriffe, 2015 ONCA 880 (CanLII), 333 C.C.C. (3d) 330, at para. 70, leave to appeal refused, [2016] S.C.C.A. No. 299.
[58] The danger posed to the appellants’ children was not part of the “narration of the relevant events.” It was not relevant to any material issue. It was not probative of whether the drugs were possessed for the purpose of trafficking, as opposed to personal use. Moreover, it was improperly admitted, based partly on the Crown’s desire to cross-examine the appellants on this issue. Throughout the rest of the trial, the child endangerment claim developed into a serious allegation against Mr. Pilgrim, one that he was not charged with.[1]
[59] The Chambers line of cases does not provide a basis for the admission of evidence of discreditable conduct or bad character. It prescribes a specific and limited use for otherwise admissible evidence. A prosecutor’s desire to create fodder for cross-examination is not a legitimate path to admission. Admission of highly prejudicial evidence on this basis may actually have the effect of discouraging an accused person from testifying. Conversely, it may induce an accused person to testify just to explain irrelevant evidence that portrays him or her in an unfavourable light. Either way, it has real potential for unfairness. I cannot say that the admission of this evidence impacted on the decisions of the appellants to testify in this case. However, anticipated cross-examination was irrelevant to the decision to admit the evidence in the first place.
[60] Even if it had been admissible as part of the narration of events, the potential dangers associated with this discreditable conduct evidence were acute, even in a trial by judge alone: see R. v. Villeda, 2011 ABCA 85 (CanLII), 269 C.C.C. (3d) 394, at para. 18. It was essential that the trial judge clearly articulate the limited use he was permitted to make of this evidence – evaluating Mr. Pilgrim’s credibility – and restrict his assessment of that evidence to its limited use. I accept Ms. Shaikh’s submission that the trial judge did not say he convicted Mr. Pilgrim because of this evidence of bad character. One could hardly imagine any judge making such a statement. . R v MacIsaac
In this criminal case, R v MacIsaac (Ont CA, 2017), the Court of Appeal discusses the collateral fact rule, which is the rule that a witness should not be impeached (discredited by later conflicting evidence) on issues that are not material to the case:[58] The collateral fact rule does not curtail what is otherwise proper cross-examination of a witness; it potentially limits the manner in which answers given may be subsequently challenged by extrinsic evidence: see Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (Toronto: LexisNexis Canada Inc., 2014), at pp. 1195-1201. As is often said, if the questioner asks a question that bears on a collateral issue, he or she is “stuck” with the answer, in the sense of not being permitted to lead extrinsic evidence to contradict it. However, this does not prevent proper questions from being put in the first place: see R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, at pp. 474-475 and R. v. Khanna, 2016 ONCA 39 (CanLII), 127 W.C.B. (2d) 613, at para. 9.
[59] The collateral fact rule is most often engaged when a cross-examiner attempts to challenge the credibility of a witness. Generally speaking, credibility is considered to be collateral, thereby barring the questioner from adducing extrinsic evidence that bears solely on this issue. However, the rule has developed in a manner that admits of a number of exceptions: See Earl J. Levy, Examination of Witnesses in Criminal Cases, 7th ed. (Toronto: Thomson Reuters, 2016), at pp. 509-511. The exception that might have applied in this case is that medical evidence may be adduced to prove that, by virtue of a mental or physical condition, the witness is incapable of telling or is unlikely to tell the truth. In Toohey v. Metropolitan Police Commissioner, [1965] A.C. 595 (H.L.), at p. 608, Lord Pearce held: “…it must be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.” See also R. v. Dietrich, 1970 CanLII 377 (ON CA), [1970] 3 O.R. 725 (C.A.), at pp. 742-744. . Kolapully v. Myles
In Kolapully v. Myles (Ont CA, 2024) the Ontario Court of Appeal largely dismissed an appeal of MVA damages.
Here the court considered the 'collateral fact rule' - as it relates to both credibility and reliability - in a sort of new, 'principled' collateral fact rule:[37] Having concluded that the attendant care forms were not substantively relevant to a fact in issue, the next question is whether they were admissible for the purpose of attacking Ms. Kolapully’s credibility.
[38] According to Justice Paciocco and his co-authors, there is an unresolved debate in the law between the view that credibility and reliability are not collateral where they matter in a case, on the one hand, and on the other hand, that credibility and reliability are always only collateral.[4] The Paciocco text takes the position that the “prevailing view is that credibility and reliability are collateral”, citing R. v. Krause (1986), 1986 CanLII 39 (SCC), 54 C.R. (3d) 294 (S.C.C.), at p. 301, per McIntyre J.: a matter is collateral where it is “not determinative of an issue arising in the pleadings or indictment or not relevant to the matters which must be proved for the determination of the case.”
[39] Previous versions of the Paciocco text advocated for a modification of the collateral facts rule “so that it reflects the principled approach that has come to be accepted in almost all areas of the law of evidence: if the contradiction is probative enough to outweigh the prejudice it may cause, admit it.”[5] The text cited this court’s decision in R. v. F.(C). 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 58
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