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Evidence - Religious Beliefs. R. v. Singh [religious motives]
In R. v. Singh (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this from "eight counts arising from allegations of assault, sexual assault, and forcible confinement".
Here the court considered the propriety of assessing evidence in light of the complainant's religious beliefs and motives:[17] Evidence is admissible if (1) it is relevant to a live material issue, (2) its probative value exceeds its prejudicial effects, and (3) no other exclusionary rule applies: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting in part, but not on this point). Instead of contesting the first two requirements, the appellant rests his case on the third. Citing R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, he submits that an exclusionary rule barred the trial judge from using the complainant’s motives to rebut the fabrication allegations because those motives were religious.
[18] Santhosh, however, did not adopt such a sweeping rule. Instead of blocking the admission of religious belief evidence for legitimate purposes, that case only barred using it for the illegitimate purpose which arose on the facts – believing or disbelieving witnesses because they are religious or non-religious: at para. 40. That use is prohibited because holding or not holding religious beliefs “does not establish a ‘tendency or disposition’ to tell the truth or lie”: at para. 44, quoting R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), at p. 167, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824.
[19] I would decline to expand Santhosh’s exclusionary rule to categorically bar the admission of the motive evidence here. Both precedent and policy counsel against doing so.
[20] First, precedent establishes that evidence of religious beliefs may sometimes be admitted where relevant to a live material issue. The Supreme Court of Canada admitted such evidence to establish modus operandi, and Santhosh suggested that it may be also admissible to show a witness’s interest or bias: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at paras. 31, 63, 66, 71, 73-74; Santhosh, at para. 52, quoting Fed. R. Evid. 610, Advisory Committee’s Note.
[21] Another such live material issue is motive. It is important to be aware of all the reasons – both secular and religious – why victims of sexual and intimate partner violence may disclose abuse later: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 183. If a party puts the timing of disclosure at issue by alleging motive to fabricate, the opposing party is thus entitled to show that other motives explain that timing: R. v. Pargelen (1996), 1996 CanLII 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at p. 516; R. v. Brown (2005), 2005 CanLII 30694 (ON CA), 201 C.C.C. (3d) 309 (Ont. C.A.), at paras. 14-17.[2] Courts have accordingly grappled with “spiritual … considerations that may be preventing the victim from talking about the violence”: M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 178. Like non-religious motives, such religious beliefs may rebut fabrication by explaining the timing of disclosure: Greaves v. Greaves (2004), 2004 CanLII 25489 (ON SC), 4 R.F.L. (6th) 1 (Ont. S.C.), at para. 9; Zunnurain v. Chowdhury, 2024 ONSC 5552, at para. 231.
[22] Second, two important principles – the truth-seeking objective and state neutrality – confirm that a contextual approach is preferable to a categorical bar.
[23] Truth-seeking favours contextualism over blanket prohibitions. The law of evidence starts from the premise that all relevant evidence should be admissible and prefers case-specific balancing and careful limiting instructions to categorical bars: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at paras. 18-19; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 691. Admitting evidence of religious belief where it is probative of a legitimate issue and not unduly prejudicial advances this truth-seeking function, while across-the-board exclusion frustrates it.
[24] The principle of state neutrality also prefers contextualism over categorical exclusion. A neutral state “shows respect for all postures towards religion” by neither favouring nor disfavouring any of them: S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, at para. 32. State neutrality preserves pluralism by fostering equality, solidarity, mutual understanding, and diversity. By affirming the freedom of all to believe or not to believe and valuing everyone equally, this inclusive principle enables diverse people and communities to live together peacefully and participate fully in public life free from discrimination, coercion, or judgment: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at paras. 45, 47; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at paras. 74-75.
[25] By respecting all postures, state neutrality recognizes the importance of belief to individual identity for religious believers and holders of non-religious conscientious beliefs alike. In the words of Justice Albie Sachs of the South African Constitutional Court, religious beliefs – and, I add, conscientious ones – are “key” to human dignity and “central” to the activities of those who hold them: Christian Education South Africa v. Minister of Education, [2000] ZACC 11, 2000 (4) S.A. 757, at para. 36; see also Loyola, at paras. 43-44; Mouvement laïque, at paras. 73-74; McKitty v. Hayani, 2019 ONCA 805, 439 D.L.R. (4th) 504, at para. 62.
[26] Applied to evidence law, state neutrality precludes both favouring and disfavouring religion-related evidence on the basis that it is religious. Finding witnesses more credible because they are religious violates state neutrality by favouring religious belief: Santhosh, at paras. 47-49. But the converse is also true – a categorical bar on otherwise admissible evidence simply because it implicates religion risks unfairly disfavouring religious beliefs. In this case, despite challenging the complainant’s religious motives, the appellant did not object to her non-religious motives. Because both motives are capable of explaining the complainant’s actions, admitting the latter but excluding the former simply because it is religious risks creating a “hierarchy of beliefs” that ranks some convictions as more legitimate than others: Mouvement laïque, at para. 73.
[27] Categorically excluding evidence of religious motives for not disclosing sooner also risks disfavouring many complainants based on their beliefs. By sending a message that religious motives concerning when to disclose violence are illegitimate, a blanket bar risks creating an “ideal victim” myth that excludes the complainants who hold those beliefs, denies them the law’s protection, discourages them from reporting, and undermines their trust and broader public trust in the administration of justice: R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at para. 37; R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 35; R. v. Kinamore, 2025 SCC 19, 503 D.L.R. (4th) 385, at para. 74.
[28] These harms may be felt most heavily by marginalized or racialized newcomer women like the complainant in this case. These women are often especially vulnerable to sexual and intimate partner violence, they already frequently face serious barriers to reporting and accessing justice, and their religious views are sometimes poorly understood by the rest of society. Adding an evidentiary hurdle that prevents them from defending themselves against fabrication allegations by explaining those views risks pushing them even further to the margins and sending a message that the courtroom is an unwelcoming environment: R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at paras. 61-62; Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 101, per Martin J. (concurring); Ahluwalia v. Ahluwalia, 2022 ONSC 1303, 161 O.R. (3d) 360, at paras. 73, 119, aff’d in part, rev’d in part, 2023 ONCA 476, 167 O.R. (3d) 561, leave to appeal granted and appeal heard and reserved February 11-12, 2025, [2023] S.C.C.A. No. 529; Santhosh, at para. 47.
[29] State neutrality instead steers a middle path that accommodates belief while preserving guardrails. A “secular state respects religious differences” rather than seeking to erase them: Loyola, at para. 43. While trial fairness and the sound administration of justice must be defended, attempting to banish religion from the courtroom is unprincipled and unrealistic in our pluralistic society. Because neutrality is inclusive not exclusionary, the law strives to make space for religious and conscientious beliefs in the courtroom where possible: N.S., at paras. 50-56.
[30] Guardrails against the risks of improper reasoning are, of course, needed. Evidence of religious motives can risk prejudice, stereotyping, and distraction from the core issues. Inflammatory remarks by counsel that mock or belittle religious or conscientious beliefs fuel these risks, as do unfocused detours into the intricacies of religious doctrine. Care is needed to guard against the risks of privileging mainstream views and disfavouring minority views or non-believers: Santhosh, at paras. 46-48; Shearing, at paras. 66, 71; R. v. A.T., 2015 ONCA 65, 124 O.R. (3d) 161, at paras. 32-40; R. v. Bouhsass (2002), 2002 CanLII 45109 (ON CA), 62 O.R. (3d) 103 (C.A.), at para. 12.
[31] Contextual balancing and careful limits on use supply these guardrails. In Shearing, for instance, the Supreme Court deferred to the trial judge’s careful balancing of the probative value and prejudicial effect of similar fact evidence implicating religious beliefs: at paras. 66, 71-74. Even where evidence of religious motives passes this balancing test, robust use limits remain. Using such evidence to believe or disbelieve witnesses because they are religious or non-religious remains off-limits. Instructions or self-directions about the proper and improper uses of evidence of religious motives can keep the trier of fact focused on the core issues and avoid impermissible reasoning. Inflammatory remarks by counsel should be corrected, and unnecessary excursions into the finer points or merits of beliefs should be avoided: A.T., at paras. 33, 38-40; Santhosh, at para. 50.
b. Application: The Trial Judge Used the Evidence Properly
[32] In this case, the trial judge did not commit any reversible error in his use of the evidence of the complainant’s religious motives. It was open to him to consider that evidence because it was relevant to a live material issue. Because the defence put the timing of disclosure at issue by alleging motives to fabricate, the Crown was entitled to show that the complainant had other reasons, including religious motives, for not disclosing the violence sooner.
[33] The trial judge used the evidence for that very proper purpose, stating that the complainant’s religious beliefs undercut the defence’s fabrication theory. Read in the context of the record, this statement was clearly meant to support his ultimate conclusion that the complainant was acting for reasons other than the alleged motives to fabricate. The appellant’s submission that the trial judge instead found the complainant more credible because she was religious – an argument the Crown never made – overlooks both the context and the presumption of correct application: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 79. Thus, the trial judge did not violate Santhosh’s exclusionary rule.
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