Rules Relating to the Use of Admissible Evidence

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 670-704

670

CHA PTER 12

RULES RELATING

TO THE USE OF

ADMISSIBLE EVIDENCE

1. INT RODUCTION

In general, the trier of fact is entitled simply to apply common

sense and human ex perience in deter mining 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 can control the way that

particular items of evidence are used. The few corroboration

rules that remain stipulate that tr iers of fact may not rely upon a

particular item of evidence unless it has been confirmed by othe r,

independent evid ence. Relatedly, in criminal trials involving wit-

nesses who are regarded as particularly untr ustworthy, such as

jailhouse informants, judges are encouraged — and in some cases

required — to warn juries about the danger of relying on their testi-

mony without confirmation. Finally, the way that evidence can be

used is also controlled by presumptions of law.

In most cases, tr iers of fact are simply invited to apply common sense

and human exper ience to decide whether admissible evidence is cred-

ible and reliable and to determine what use, if any, to make of that

evidence in coming to their fi ndings of fact. This is not always so. As

discussed i n the introductory chapter, some rules of admissibility

impose limitation s on the use that can be made of admissible ev idence.1

1 See Chapter 1, Sect ion 1.2, “Rules of Adm issibility.”

Rules Relati ng to the Use of Admissible Evi dence 671

Corroboration, discretionar y warning rule s, and presumptions of law,

all of which are discu ssed in this chapter, also control how triers of fact

can use certa in kinds of evidence.

The Ontario Court of Appeal ha s defined “corroborating evidence”

as follows: “Corroborating evidence is simply evidence that is sep-

arate from but strengthens or confir ms what other evidence shows.”2

Thus, corroboration rules require that, before triers of fact can rely

upon particular ev idence, they must search for, and in some cases find,

independent evidence that strengthen s or confirms it.

Such strict corroboration rules are be coming less common and much

less technical t han they once were. Most corroboration rules have been

repealed, and in some case s have been replaced by discretionary wa rning

rules that are intended to provide guidance to triers of fact. These discre-

tionary war ning rules ty pically require that tr iers of fact receive warn-

ings about evidence that is regarded as particularly dangerous, although

triers of fact remain f ree to act upon it.

Presumptions of law can a lso control the way that specific evidence

is used. They can require t riers of fact to find that a presumed fact exi sts

on the evidence, even if the trier of fact mig ht not otherwi se be satisfied

about the existence of that fact. For example, where it is proved that an

accused person was in t he seat normally occupied by the operator of a

“conveyance” (including a motor vehicle), section 320.35 of the Criminal

Code require s the trier of fact to find that the accused intended to set

the conveyance in motion, unless the accused establishes that they d id

not intend to do so. If the accused does not disprove their intention to

operate the conveyance on the balance of probabilities, and if t he trier

of fact finds that the accused was impaired or had more than the legal

limit of alcohol in their body at the time, then the trier of fact must

convict the accused of an offence contrary to section 320.14, even if the

trier of fact has a rea sonable doubt as to whether the accused re ally was

intending to operate the conveyance. Because presumptions tend to

be rebuttable, they are closely linked to burden s of proof. If one party

benefits from a rebuttable presumption, then the other party bears the

burden of proof: it must present evidence that rebuts the presumption,

or its opponent will win on the is sue by default. Since presumptions

of law and burdens of proof are closely linked, t hey will be discu ssed

together in this chapter.

2 Gyorffy v Drur y, 2015 ONCA 31 at para 25.

THE LAW OF EVIDENCE672

2. CORROBORATION AND DANGEROUS

EV IDENCE

2.1) The Former Law of Corroboration

At common law, certain kinds of evidence were considered to be par-

ticularly unsafe. “Rules of practice” developed requiring the judge to

warn the jury of t he dangers of convicting an accused person on the

“uncorroborated” or unconfirmed testimony of cert ain witnesses. More-

over, judges had an obligation to describe for the jury when evidence

was capable of “corroborating” that testimony, according to law. Judges

even had to warn themselves in judge-alone trials. According to these

common law rules, triers of fact could convict in the absence of “cor-

roboration,” but only after receivi ng these mandatory warnings. The

most important kinds of ev idence singled out for this cautious treat-

ment were the testimony of accomplices to crime, children, and com-

plainants alleging sexual offences.

In addition, a number of statutes were passed m aking corrobor-

ation a “rule of law” in some cases. Where such statutes applied in

the crimin al context, a trier of fact could not convict based solely on

uncorroborated testimony, even if the trier of fact would otherwise

have accepted that testimonial evidence as proof beyond a reasonable

doubt of the accused’s guilt. A since-repealed provision of the Criminal

Code, for example, stated: “No person shall be convicted of an offence

under this section [forgery] on the evidence of only one witness unless

the evidence of that witne ss is corroborated in a materia l particular by

evidence that implicates the accused.”3

The law of corroboration evolved into a highly technical and

restrictive body of authority. Corroboration came to have a narrow

meaning. Evidence would not be accepted as corroborative simply

because it supported or confir med the suspect testimony. Corroborative

evidence had to be “independent,” it had to confirm the testimony in a

material par ticular, and it had to implicate the accused.4 To be corrob-

orative, circumstanti al evidence had to be consistent only wit h guilt.

Not surprisingly, the law of corroboration was crit icized and was

increasingly regarded a s a source of embarrassment, par ticularly for

the crimin al justice system. Most notably, the law of corroboration

made it difficult to secure convictions in cases involving sexual assault

and/or crimes agai nst children. In addition to being highly technical, it

3 See R v Bosley (1992), 18 CR (4th) 347 (Ont CA).

4 R v Baskerville, [1916] 2 KB 658 (CA).