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Evidence - Collusion. R. v. R.I.
In R. v. R.I. (Ont CA, 2024) the Court of Appeal considered the psychological influence on a witness of hearing others discussing the same topic, here termed 'collusion' although it may better be termed as 'unintentional collusion' (or perhaps 'witness social influence'?):[31] In so concluding, the trial judge failed to properly consider whether S.L.’s exposure to the conversations about E.L.’s allegations affected her credibility and reliability. It is well-established that hearing the evidence of other witnesses “can have the effect, whether consciously or unconsciously, of colouring and tailoring [a witness’s] descriptions of the impugned events”: R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at para. 28, citing R. v. C.B. (2003), 2003 CanLII 32894 (ON CA), 167 O.A.C. 264, at para. 40. For this reason, a trial judge faced with evidence of potential collusion must directly address the evidence and consider its impact on the witness’s credibility and reliability. It remains open to the trial judge to rely on the witness’s testimony, but only if the trial judge is demonstrably satisfied that the alleged collusion did not taint the witness’s credibility or reliability: C.G., at paras. 33-40; R. v. Burnie, 2013 ONCA 112, 303 O.A.C. 76, at paras. 36, 41.
[32] We agree with duty counsel that the trial judge in this case did not adequately address the evidence of potential collusion and explain why this factor, together with S.L.’s animus and the various frailties in her evidence, did not leave him with a reasonable doubt. . R. v. Casarsa
In R. v. Casarsa (Ont CA, 2023) the Court of Appeal considered evidentiary 'collusion' - here without citing cases, but the discussion is revealing for the nature of the concept:The Collusion Argument
[4] We see no merit in the collusion argument, even though we recognize that there was an air of reality to the risk of collusion, given that the complainants met together as a result of the assaults before going to the police. The trial judge released a blended decision, in which he first addressed the preliminary issue of the use of evidence cross-counts as similar fact evidence, before turning to the question of whether the Crown ultimately proved Mr. Casarsa’s guilt beyond a reasonable doubt. The trial judge addressed the risk of collusion between the complainants in the similar fact evidence portion of his decision. He found that there was an air of reality to the risk of collusion, but decided that the Crown had proved on the balance of probabilities that collusion had not occurred. On this basis, he found that the two complainants’ allegations had been made independently and not collaboratively, and that their complaints were “truly independent”. Given this finding, and the probative similarities he identified in the assaults, he permitted the cross-count similar fact evidence application.
[5] Before us, Mr. Casarsa argued against the trial judge’s finding that the complaints were “truly independent”, but the trial judge was entitled on the evidence to come to this conclusion. Both complainants testified that they did not discuss the details of the events when they met. The trial judge accepted this testimony. It is not our role to retry this issue as if we had been the trial judge. We must defer to his finding unless it is unreasonable, or it is based on an error of law or principle or a palpable and overriding factual error. We see no such errors.
[6] Given the trial judge’s finding during the similar fact evidence application that the accounts of the complainants were “truly independent”, it is obvious why he did not see the need to mention collusion again, in the same decision, when moving on to determine that the Crown had proved its case. We deny this ground of appeal. . R. v. E.M.M.
In R. v. E.M.M. (Ont CA, 2021) the Court of Appeal defines innocent collusion:[19] Innocent collusion occurs when, through mere conversation, false memories are implanted and overwhelm independent recollection. However, courts must be wary of jumping to the conclusion that that a witness’s evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation. Witnesses may know each other. It is human nature to discuss what happened immediately after offending behaviour takes place: Peter Sankoff, The Law of Witnesses and Evidence in Canada, loose-leaf (Toronto: Thomson Reuters, 2019), at §7.4(c), adopted in R. v. L.(R.G.) (2004), 2004 CanLII 32143 (ON CA), 185 C.C.C. (3d) 55 (Ont. C.A.), at para. 37, per Weiler J.A. (dissenting, but not on this point), appeal quashed, 2005 SCC 18, [2005] 1 S.C.R. 288.
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