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Evidence - Oath-Helping. R. v. Savage
In R. v. Savage (Ont CA, 2023) the Court of Appeal considers oath-helping, and testimony similar to it:[15] I begin by saying that I do not accept that this evidence is properly characterized as oath-helping. Ms. Kinney waited a number of months before telling the police about the appellant’s confession. It was necessary for the Crown to lead evidence from Ms. Kinney regarding the reasons for that delay. Most of the evidence about which the appellant complains is evidence directed to those reasons.
[16] Further, the Crown could anticipate that the defence would strongly challenge Ms. Kinney’s evidence. Given their former domestic relationship, the Crown could anticipate that the defence would suggest that Ms. Kinney was vengeful and bitter and would falsely accuse the appellant to get back at him. Consequently, it was proper for the Crown to lead evidence that would provide a broader context for the jury to consider any such suggestion.
[17] On that point, there is a distinction to be made between evidence that goes directly to a witness’s credibility (i.e. a witness stating “in my opinion the witness is truthful”), which is inadmissible, and evidence about a feature of the witness’s behaviour or testimony, which may be admissible even though it will likely have some bearing on the trier of fact’s ultimate determination of the question of credibility: R. v. Llorenz (2000), 2000 CanLII 5745 (ON CA), 145 C.C.C. (3d) 535 (Ont. C.A.), at para. 28, appeal as of right but appeal discontinued, [2000] S.C.C.A. No. 335. The evidence here falls into that latter category. As I have explained, the evidence was not called solely for the purpose of enhancing Ms. Kinney’s credibility nor was it even primarily called for that purpose. It was called to explain the delay in Ms. Kinney telling the police about the appellant’s confession.
[18] However, even if this evidence is properly characterized as oath-helping, that fact, by itself, did not render the evidence inadmissible. As a general proposition, oath-helping evidence is inadmissible if it is led only for the purpose of bolstering a witness’ evidence. If there is another purpose to which the evidence relates, the evidence is not rendered inadmissible simply because it may also include an element of oath-helping. This point has been made in many cases including, for example, in R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, where Iacobucci J. said, at p. 729:The rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness' credibility before that witness' credibility is attacked. [Emphasis added.] . R. v. T.O.
In R. v. T.O. (Ont CA, 2023) the Court of Appeal considers and applies doctrine related to oath-helping:(a) Case-law on the rule against oath-helping
[34] This panel recently discussed the rule against oath-helping in R. v. R.M., 2022 ONCA 850. In that case, Crown counsel asked the complainant at the close of her examination-in-chief whether she had chosen to testify of her own free will, and she responded: “I have”.
[35] The court found that the question was improper and should not have been asked. The fact that the complainant chose to testify was not relevant to any issue at trial and was intended to bolster the complainant’s credibility. As the court stated, “[t]he impermissible inference lying behind this type of questioning is that she was more likely to be telling the truth because even when given the opportunity not to testify, she made the choice to come to court (because she was telling the truth)”: at para. 39.
[36] Copeland J.A. explained that the evidence constituted a type of oath-helping and that “[t]he rule against oath-helping prohibits the reception of evidence solely for the purpose of establishing the truthfulness of a witness: R. v. J.H., 2020 ONCA 165, at paras. 93-95, 103; R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at p. 729; R. v. Llorenz (2000), 2000 CanLII 5745 (ON CA), 145 C.C.C. (3d) 535 (Ont. C.A.), at paras. 27-28; R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at paras. 31, 33-35” (citations in original): at para. 40.
[37] In that case, it was not necessary to decide whether that error alone required a new trial because the court had already found that a new trial was necessary based on other errors.
[38] Another recent decision of this court where an oath-helping error was found is R. v. Tash, 2013 ONCA 380, 306 O.A.C. 173. In that case, after a police officer was cross-examined suggesting that his evidence had been fabricated because of his dislike for the accused, the Crown sought to rehabilitate the witness in re-examination by eliciting that he had never been charged with or cited for misconduct and had been promoted since the accused’s arrest. The appellant argued that this evidence constituted oath-helping and required a jury instruction that the evidence was irrelevant to their decision.
[39] Watt J.A. explained that while evidence can be elicited to rehabilitate a witness’s credibility after impeachment, “the bolstering evidence must be responsive to the nature of the attack and not exceed permissible limits.…At root, the admissibility of rehabilitative evidence should depend on whether what is proposed is logically relevant to rebut the impeaching fact.…The wall, attacked at one point, may not be fortified at a distinctly separate point: McCormick on Evidence (7th ed., 2013, Thomson Reuters: Westlaw), at §47, pp.307-308” (citation in original): Tash, at para. 43.
[40] Applying these principles, the court found that the fact that the officer had no disciplinary record and had been promoted to his current rank after the events at issue was not responsive to the allegation that he had motive to fabricate his evidence against the accused and therefore constituted impermissible oath-helping. Based on that and other errors that affected the credibility assessments of the principals at trial, a new trial was ordered.
[41] Finally, in R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at paras. 33-39, Juriansz J.A. explained the rule against oath-helping and the two exceptions to it. In that case, the trial judge believed the complainant, in part because of the conservative manner in which she was dressed in court and because she was a religious person. Both these factors were irrelevant to her credibility. The trial judge’s use of the complainant’s religious beliefs to bolster her credibility constituted impermissible oath-helping.
[42] The court noted the two exceptions to the admissibility of oath-helping evidence: 1) where the evidence is from the accused testifying in a criminal proceeding; and 2) to rehabilitate the credibility of a witness whose credibility has been attacked, as long as the evidence is responsive to the attack, as explained in Tash, at para. 43. The irrelevant evidence that the complainant was a religious person did not meet the second exception. However, in that case, because both considerations played a very small role in the trial judge’s assessment of the complainant’s credibility, the court found it unnecessary to order a new trial.
(b) Application of the case-law
[43] Before applying the principles of the rule against oath-helping to this case, I first observe that the fact that the complainant travelled to Ontario to attend the hearing in person and felt that it was important to do so, was not a matter raised or discussed in evidence. It was reported by Crown counsel to the court. Even before considering the principles that apply to oath-helping evidence, in this case, the trial judge’s reliance in her reasons on a matter that was not in evidence before the court, and not subject to cross-examination, affects the fairness of the trial in respect of that part of the reasons. The trial judge was not entitled to use that information for any purpose, at least without raising it with counsel and receiving submissions: see e.g. R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 38, 74 re judicial notice.
[44] Applying the principles that govern the rule against oath-helping, the information that the complainant chose to travel to Ontario to give her evidence in person was not relevant to her credibility or reliability. While it could indicate that she wanted to be in a more comfortable atmosphere when she testified, that does not speak to the truthfulness or accuracy of her testimony on either occasion, both being under oath.
[45] Nor was that information responsive to the inconsistency, such as something that specifically jogged her memory of the actual occurrence, as required for any such evidence (if it had been evidence) to be admissible under the second exception to the rule against oath-helping: Tash, at para. 43.
[46] In the result, the trial judge’s use of the information that the complainant wanted to travel to Ontario to appear in person at the trial was impermissible oath-helping and constituted an error of law.
[47] Unlike in Santhosh, the trial judge relied heavily on this information in order to resolve a direct inconsistency in the complainant’s evidence on a material issue, namely in the couch and garage occurrences, whether she touched the appellant’s penis. The invitation to sexual touching count was particularized as the appellant inviting the complainant to touch the appellant with her hands. As a result, the conviction for invitation to sexual touching cannot stand. . R. v. R.M.
In R. v. R.M. (Ont CA, 2022) the Court of Appeal considered an evidentiary issue of oath-helping and related complications:[38] However, the second passage, at the end of the examination-in-chief, was clearly intended to elicit that the complainant had been given the option not to attend and testify at the trial, and that, having been given that option, she chose “of [her] own free will” to attend and testify. The questions are notable for their placement at the end of the examination-in-chief, as it suggests Crown counsel intended them to give a strong finish to the examination.
[39] These questions should not have been asked. The fact that the complainant had been offered the opportunity not to testify, but chose to attend and testify anyway, was not relevant to any issue at trial. This line of questioning by Crown counsel at trial sought to bolster the complainant’s credibility. The impermissible inference lying behind this type of questioning is that she was more likely to be telling the truth because even when given the opportunity not to testify, she made the choice to come to court (because she was telling the truth).
[40] This is a type of oath-helping. The rule against oath-helping prohibits the reception of evidence solely for the purpose of establishing the truthfulness of a witness: R. v. J.H., 2020 ONCA 165, at paras. 93-95, 103; R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at p. 729; R. v. Llorenz (2000), 2000 CanLII 5745 (ON CA), 145 C.C.C. (3d) 535 (Ont. C.A.), at paras. 27-28; R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at paras. 31, 33-35.
[41] The line between impermissible oath-helping and relevant evidence which also bears on credibility is not always clear: Llorenz, at para. 28. However, the questions asked by Crown counsel at the end of the complainant’s examination-in-chief were on the wrong side of the line.
[42] In addition, the evidence elicited by Crown counsel at the end of the cross-examination sought to rely on the inference that the complainant was more credible because she exposed herself to the “unpleasant rigours of a criminal trial.” The difficulty with this type of reasoning is that using the fact that a complainant pursued a complaint to bolster their credibility is inconsistent with the presumption of innocence: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 87-89.
[43] A further mischief raised by the specific type of oath-helping questions asked in this case is their potential to raise a collateral issue of the nature of the offer allegedly made to the witness not to testify. Who made the offer? When? In what form? Was it a genuine offer? Why was it made? . R. v. D.M.
In R. v. D.M. (Ont CA, 2022) the Court of Appeal comments on the use of expert testimony on credibility:[47]... There are significant limits on the contribution that expert witnesses can make to credibility assessments, including the rule against oath helping, which prohibits the reception of expert opinion about the truthfulness of a witness: R. v. J.H., 2020 ONCA 165, at para. 94; R. v. Llorenz (2000), 2000 CanLII 5745 (ON CA), 132 O.A.C. 201 (Ont. C.A.), at para. 27. ... . R. v. Oppong
In R. v. Oppong (Ont CA, 2021) the Court of Appeal considered oath-helping:[57] The determination of a witness’s credibility and reliability is for the trier of fact and is not the proper subject of expert opinion. An expert opinion cannot be introduced if the purpose is solely to bolster a witness’s credibility (i.e.: oath-helping). “Credibility is a notoriously difficult problem, and the expert’s opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 248. . R. v. Santhosh
In R. v. Santhosh (Ont CA, 2016) the Court of Appeal canvasses the law of the evidence rule against 'oath-helping':(i) The Rule Against Oath-Helping
[33] The rule against oath-helping bars parties in most circumstances from introducing evidence solely to support a witness’s credibility. In R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at p. 729, Iacobucci J. stated the rule in the following manner:The rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness’ credibility before that witness’ credibility is attacked. This type of evidence is of the sort that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements. [34] Evidence that might have an incidental oath-helping aspect is admissible when tendered for some other admissible purpose. That said, “where evidence is admissible for another purpose, but it is also oath-helping, a court should take any appropriate steps necessary to limit the oath-helping nature of the evidence, including cautioning the jury”: R. v. Mallory, 2007 ONCA 46 (CanLII), 220 O.A.C. 239, at para. 280. Trial judges sitting alone should heed this caution and use such evidence only for the other admissible purpose. In this case there was no other admissible purpose for the evidence.
[35] Consequently, the trial judge could not use the evidence of the complainant’s religiosity for credibility purposes, unless some exception to the rule against oath-helping applied. There are two primary exceptions to the rule against oath-helping, neither of which apply here.
[36] First, the rule against oath-helping does not apply to an accused person testifying in a criminal proceeding: R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1 (Ont. C.A.), at para. 20. The law gives wide latitude to accused persons to introduce oath-helping and other character evidence.
[37] Second, a party can introduce oath-helping evidence to bolster the credibility of a witness whose credibility has been attacked. However, the scope of permissible oath-helping evidence in such a situation is limited. In R. v. Tash, 2013 ONCA 380 (CanLII), [2013] O.J. No. 2642, Watt J.A. helpfully laid out the interplay between an attack on credibility and the evidence that may be adduced in response to it:[42] A witness’ character for truthfulness or mendacity is relevant circumstantial evidence on the question of the truthfulness of the witness’ testimony. Evidence of a witness’ previous deception tends to demonstrate a character for untruthfulness. In turn, the existence of such a character trait increases, at least slightly, the probability that the witness has lied under oath. Proof of a witness’ character trait for untruthfulness can be accomplished in several ways including proof of prior untruthful conduct, the witness’ associations, and prior history. Any other acts offered to establish character should have a significant relation to credibility.
[43] Our adversary system requires that the proponent of a witness be afforded an opportunity to meet attacks on the credibility of the witness by presenting evidence rehabilitating the witness. But the bolstering evidence must be responsive to the nature of the attack and not exceed permissible limits. For example, supportive evidence of good character for honesty of a witness impeached by evidence of “bad” character for untruthfulness or dishonesty is permissible. Proof of prior consistent statements to rebut impeachment on grounds of recent fabrication is also permissible. At root, the admissibility of rehabilitative evidence should depend on whether what is proposed is logically relevant to rebut the impeaching fact. The rehabilitating facts should meet the impeachment with relative directness. The wall, attacked at one point, may not be fortified at a distinctly separate point. [Citations omitted; emphasis added.]
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