1. Introduction

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

Page 521

In general, the trier of fact is entitled simply to apply common sense and human experience in determining whether evidence is credible and in deciding what use, if any, to make of it in coming to its finding of fact.

Exceptionally, corroboration rules and presumptions of law can control the way that particular items of evidence are used.

In most cases, the trier of fact is simply invited to apply common sense and human experience to decide whether admissible evidence is credible and to determine what use, if any, to make of it in coming to its finding of fact. This is not always so. As discussed in the introductory chapter, some rules of admissibility impose limitations on the use that can be made of admissible evidence.1Corroboration rules and presumptions of law, discussed in this chapter, can also control the use that triers of fact can make of certain kinds of evidence.

Corroboration rules require triers of fact to search for, and in some cases to find, independent evidence that confirms other evidence before it is relied upon. For example, subsection 19(2) of the Alberta Evidence Act provides that no case shall be decided on the unsworn evidence of a child of tender years unless that evidence is corroborated. This

Page 522

means that the trier of fact is legally obliged to refrain from acting on the uncorroborated, unsworn testimony of a child even where the trier of fact is firmly convinced that the child is being truthful and accurate. Similarly, the Ontario Evidence Act disallows any verdict from being rendered against a deceased persons’ estate based solely on the uncorroborated testimony of the opposing party litigant. This means that there must be independent evidence confirming each particular claim made. In Liu Estate v. Chau the Ontario Court of Appeal ruled against the tenants of a deceased man, given that their defence to a rent arrears claim was based solely on their assertion that they had made the payments in cash to the landlord before he died.2Strict corroboration rules are becoming less common and much less technical than they once were. They are being repealed and in some cases replaced by other rules that are intended to provide guidance to triers of fact. These rules typically require warnings to be given to the triers of fact about evidence where it is particularly dangerous, although the trier of fact remains free to act upon it.

Some presumptions of law also...

To continue reading