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Evidence - 'Inadvertent Tainting'. R v B.H.
In R v B.H. (Ont CA, 2022) the Court of Appeal made a point about 'inadvertent tainting':[19] Second, we see no air of reality to the appellant’s argument that there is a risk that R.H.’s evidence was inadvertently tainted or coloured by the disclosure conversation or any other discussion with A.H. In her evidence, R.H. alleged multiple incidents of intrusive sexual abuse going well beyond that which A.H. alleged occurred in the single incident to which she testified. We see no realistic possibility that R.H.’s allegations were somehow inadvertently tainted by her discussions with A.H. R.H.’s allegations were of a much more intrusive and persistent character than A.H.’s allegation. As Hoy J.A. said in R. v. E.M.M., 2021 ONCA 436, at para. 19, “courts must be wary of jumping to the conclusion that a witness’s evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation.” . R. v. Ricchio
In R. v. Ricchio (Ont CA, 2022) the Court of Appeal considered an evidentiary issue of 'inadvertent tainting':[21] Inadvertent tainting occurs where a witness’ testimony is influenced by hearing evidence from other witnesses. However, the fact that one witness has heard what another witness will say, or has discussed what another person’s recollections were, does not mean that either witness is not telling the truth or that their evidence has been tainted. Indeed, even where the evidence of one of the parties to the discussion is inadvertently affected by what another person has said, the account of that other person may not change: R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at para. 32.
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