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Evidence - 'Confirmatory' Evidence. R. v. Tubic
In R. v. Tubic (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a second-degree murder conviction.
Here the court considers 'confirmatory evidence':[34] .... He identified the requisite qualities of confirmatory evidence, with particular emphasis on the attribute of independence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 39 (“Khela”). He relied on R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 66, where Watt J.A. said: “It is worth [reminding] that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth” (citations omitted). ....
[35] The nub of the appellant’s complaint is that Mr. Ahmed’s evidence was not sufficiently confirmed on the issue of whether there was a physical altercation between the appellant and Mr. Fiedler. However, this narrowly focused submission runs afoul of the well-accepted principle that confirmatory evidence need not directly implicate the accused person in the offence, but as a whole, “should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence”: Khela, at para. 42; see also R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-13; and Vetrovec, at p. 833. As Martin J.A. said many years ago in R. v. Bulleyment (1979), 1979 CanLII 2922 (ON CA), 46 C.C.C. (2d) 429 (Ont. C.A.), at p. 447, the law does not require that confirmatory evidence “relate directly to some fact with respect to which the accomplice has testified. What is sought is evidence that renders it probable that the accomplice is telling the truth” (citations omitted). . R. v. C.P.
In R. v. C.P. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, and here comments on 'confirmatory' evidence:[26] .... A trial judge’s determination that a piece of evidence is confirmatory of or supports a witness’ testimony, and the weight to be given to such evidence, is part of the trial judge’s credibility assessment and fact-finding, which are accorded deference in the absence of a palpable and overriding error: R. v. De Flores Bermudez, 2024 ONCA 433, at para. 21, citing R. v. H.P., 2022 ONCA 419, 414 C.C.C. (3d) 395, at para. 71. The trial judge did not require medical evidence to conclude that the injuries identified the following day were consistent with the complainant’s account of the sexual assault, nor was it necessary that the injuries be consistent with no other explanation. . R. v. Varghese
In R. v. Varghese (Ont CA, 2024) the Ontario Court of Appeal allows a Crown criminal appeal from a dismissal.
Here the court notes considers 'confirmatory' evidence:[48] As a matter of law, confirmatory evidence need not relate to the central issue in a prosecution to be relevant. As stated in R. v. Primmer, 2021 ONCA 564, at para. 39:The fact that the evidence did not directly confirm the most contentious point of the complainant’s evidence is of no moment. The consideration of evidence which is capable of confirming or supporting certain aspects of a witness’s testimony is typically part of the assessment of credibility in making findings of fact. [49] To be given confirmatory weight, evidence need only be more consistent with the complainant’s version of events than with another version: R. v T.W.S., 2018 BCCA 119 at para. 40; 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. Deciding whether evidence confirms or corroborates a complainant’s allegations “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”: R. v. G.H., 2023 ONCA 89, at para. 20, citing Primmer at paras. 31-33, 39; R. v. S.R., 2023 ONCA 671, at para. 7.
[50] Drawing on another passage from the Alberta Court of Appeal’s reasons in Demedeiros, the respondent contends that a trial judge has the discretion not to consider confirmatory evidence or give it any weight. At para. 8, the majority stated that confirmatory evidence, like any other circumstantial evidence “can be given weight even if it does not directly confirm the key allegations of sexual assault or directly implicate the accused” (emphasis added). . R. v. J.F.
In R. v. J.F. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here commenting on 'confirmatory evidence':[29] .... This evidence, although not corroborative of every detail of what the complainant described, was confirmatory of certain aspects of her testimony, and as such was relevant to the assessment of her credibility: R. v. Primmer, 2021 ONCA 564, at para. 39, leave to appeal refused, [2021] S.C.C.A. No. 462. See also R. v. Demedeiros, 2018 ABCA 241, 431 D.L.R. (4th) 650, at para. 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568: “[w]hether evidence can be confirmatory is 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. De Flores Bermudez
In R. v. De Flores Bermudez (Ont CA, 2024) the Ontario Court of Appeal considers the SOR for 'confirmatory' evidence, which it finds here to be a "part of the trial judge’s credibility assessment":[21] ... A trial judge’s determination that a piece of evidence is confirmatory of or supports a witness’ testimony, and the weight to be given to such evidence, is part of the trial judge’s credibility assessment and fact-finding, which are accorded deference in the absence of a palpable and overriding error: R. v. H.P., 2022 ONCA 419, 414 C.C.C. (3d) 395, at para. 71; R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at paras. 8, 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568; and R. v. J.B., 2022 ONCA 214, at para. 34. . 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.
....
[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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