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Evidence - 'Confirmatory' Evidence. R. v. Neto
In R. v. Neto (Ont CA, 2023) the Court of Appeal considers 'confirmatory' evidence, both from a credibility and a reliability perspective:[36] This court found it necessary to hear from the Crown on only one aspect of the first issue: accepting that the medical evidence was independent, was it open to the trial judge to find it was confirmatory of the complainant’s evidence? These reasons address only that matter.
IV. ANALYSIS
[37] It is trite law that no corroboration is required to prove an allegation of sexual assault. However, in this case, the trial judge had reliability concerns with the complainant’s testimony and, to a lesser extent, credibility concerns. She found the complainant’s account of the assault to be “consistent” and “unshaken” on the essential elements. That, together with the independent medical evidence, satisfied the trial judge of the appellant’s guilt beyond a reasonable doubt on the charge of sexual assault causing bodily harm. We see no error in the trial judge’s treatment of the medical evidence. Her reasons explain why the evidence as a whole, including possible alternative explanations for the blood in the complainant’s vagina, did not leave her with a reasonable doubt.
[38] The consideration of evidence capable of confirming or supporting aspects of a witness’s testimony is typically part of the assessment of credibility and reliability. Confirmatory evidence is “other circumstantial evidence that tends to support the Crown’s case, or to dispose of alternative hypotheses put forward by the defence”: R v. Primmer, 2021 ONCA 564, at para. 39, leave to appeal refused, [2021] S.C.C.A. No. 462, quoting 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.
[39] In this case, it was open to the trial judge to find that the medical evidence did both: it confirmed the complainant’s account of the assault and it disposed of the defence’s alternative hypothesis that the blood was due to menstruation. While the bleeding alone could have been consistent with menstruation, the complainant’s external injuries were not. The medical evidence of swelling and tenderness between the complainant’s vaginal and anal areas, lacerations to her labia, and abrasions to her inner thigh were consistent with the complainant’s description of the violent sexual assault. They are not consistent with menstruation. Taken together, the complainant’s physical injuries and the “gross amount of bleeding” in her vagina were more consistent with a violent sexual assault than the appellant’s claim of menstruation. In short, this was not a case, as the appellant argues, where the medical evidence was equally supportive of the competing accounts of the appellant and the complainant.
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[43] ... It should be noted that to be confirmatory, the evidence need only restore “the trier’s faith in relevant aspects of the witness’s account”: R. v. Kehler, 2004 SCC 11 (CanLII), [2004] 1 S.C.R. 328, at para. 15. . R. v. L.G.
In R. v. L.G. (Ont CA, 2023) the Court of Appeal considers confirmatory evidence:[37] In considering this ground of appeal, we note that independent circumstantial evidence can be confirmatory of a complainant’s evidence provided that it is more consistent with a complainant’s version of events than with another version. Moreover, confirmatory evidence need not directly confirm key allegations of a complainant’s evidence or directly implicate an accused: R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at paras. 8 to 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568; R. v. Primmer, 2021 ONCA 564, at para. 39. Further, the weight to be given to the confirmatory evidence is simply another part of a trial judge’s credibility and fact finding and is only reviewable for palpable and overriding error. The determination of whether evidence can be confirmatory involves a “common sense analysis of whether the evidence can provide comfort to the trier of fact that the witness is telling the truth”: R. v. Khela, 2009 SCC 4, 1 S.C.R. 104, at para. 39. . R. v. R.K.
In R. v. R.K. (Ont CA, 2023) the Court of Appeal considered 'confirmatory' evidence:[43] I see no error in the trial judge’s consideration of this evidence as confirmatory evidence need not directly confirm key allegations in order to be considered in assessing credibility. The evidence need only be “more consistent with the complainant’s version of events than with another version”: R. v. J.B., 2022 ONCA 214, at para. 37. Each point was logically relevant to assessing the complainant’s credibility, particularly given the appellant’s submission that the complainant was an untruthful witness: R. v. Primmer, 2021 ONCA 564, at para. 39, leave to appeal refused, [2021] S.C.C.A. No. 462 and R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568. . R. v. G.H.
In R. v. G.H. (Ont CA, 2023) the Court of Appeal comments on 'confirmatory' evidence:[20] The phrase “confirmatory evidence” does not have a technical meaning. Nor does the phrase suggest a particular level of probative value. Confirmatory evidence is evidence the trier of fact accepts as true which, as a matter of common sense, provides support for the truth of a material part of the evidence of another witness, usually the complainant. 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: see R. v. Primmer, 2021 ONCA 564, paras. 31-33, 39.
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