Secondary Materiality and Your Own Witness

• Author: David M. Paciocco/Lee Stuesser
• Profession: Justice of the Ontario Court of Justice/Professor of Law, Bond University
• Pages: 487-520

487

CHA PTER 11

SECONDARY

MATERIALITY AND

YOUR OWN WITNESS

1. THE BA R ON BOLSTERING THE

CREDIBILITY OF YOUR OWN WITNESS

As a general rule, a party may not ask questions or present evi-

dence solely to bolster the credibility of his own witness.

Although it may be of assistance to hear testimony about the value of the

evidence that has been led in a case, there i s concern t hat to allow thi s

would take an undue amount of time and create di stracting side issue s.

Until their credibility has been made an issue by t he opposing part y,

witnesses a re assumed to be trustworthy a nd of good character.1 As a

general rule, therefore, a party cannot initiate evidence solely to establish

tha t his w itnes ses a re cred ible. Ev idence m ust be a bout the prim arily ma-

terial issues in the case, not about other evidence in the case. In R. v. Siu

1 R. v. Giraldi (1975), 28 C.C.C. (2d) 248 (B.C.C.A.), leave to appeal to S.C.C.

refused (1975), 28 C.C.C. (2d) 248n (S.C.C.). This is a reference to the cha racter

of the witnes s for truthfulnes s, not a reference to the accuracy or even tr uthful-

ness of what the w itness is saying i n the case. In other words, whi le witnesses

are assumed t o be of good character absent ev idence to the contrary, it would

be wrong to presu me that witnesses a re giving accurate test imony in the case.

The evidence of any wit ness must be examine d on its merits. Cases wher e the

trier of fact is u nable to determine whether the e vidence is accurate should be

resolved accordi ng to the standards and bu rdens of proof, not according to a

presumption th at the witness is bei ng truthful or accurat e: R. v. Thain (20 09),

243 C.C.C. (3d) 230 at para. 32 (Ont. C.A.).

THE LAW OF EVIDENCE488

this rule was contravened where a police off‌icer stated that he believed

the key Crow n witness.2 The rule was further breached when the off‌icer

testif‌ied t hat his belief was based in part on the offer of the Crown wit-

ness to take a polygraph test. Where a party leads inadmis sible evidence

to support the credibility of one of its witnesse s in a jury trial, the tria l

judge should immediately direct the jury to disregard the evidence.3

At the same time, it i s per missible and indeed customary to i ntro-

duce a witness to the court. It is common to see witnesses provide their

age and descr ibe their family and employment status and their connec-

tion to the case. Frequently, counsel will attempt to introduce their wit-

ne ss es i n a way th at w il l en ha nce the wi tne ss ’s c red ibi li ty. I t is a qu es tio n

of degree when the line is crossed between permissible introduction

and i mpermissible “bolstering.” In R. v. Clarke, for example, t hat line

was crossed when a police informant te stif‌ied that he was allowed to

leave the prison for street visits, he was studying the Bible, he attended

Alcoholics Anonymous, and he had reformed his criminal ways.4

2. GOOD CHAR ACTER EVIDENCE: THE

ACCUSED AS A WITNESS

By way of exception, as an indulgence to the accused in a criminal case, the

accused can prove his good character in a variety of ways. Such evidence

is considered relevant both to the primar ily material issue of whether the

accused comm itted t he offence charged and to the secondarily material

issue of the credibility of the accused as a witness.5 The methods for pre-

senting such evidence on the issue of credibility are identical to those

available where the good character evidence is being offered to cast doubt

on the guilt of the accused.6 In particular, the testifying accused can as-

sert their own honesty, and other witnesses can be called to testify as to

the r eputatio n of the ac cused for truth fulnes s and ver acity.7 If the accused

chooses to put their character in issue in either of t hese ways, the Crown

will be entitled to rebut the claim to good character by cross-examining

the accused or character witness, or by calling other witnesse s who wi ll

testify to the accu sed’s bad reputation for trustworthiness or sincerity.

2 (1998), 124 C.C.C. (3d) 301 (B.C.C.A.). And see R. v. Austin (2006), 214 C.C.C.

(3d) 38 at 47 (Ont. C.A.).

3 R. v. Siu, ibid.

4 (1981), 63 C.C.C. (2d) 224 (Alta. C.A.).

5 R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.).

6 See chapter 3, section 13, “Good Character Evidence and Modes of Presentation.”

7 R. v. Clarke (1998), 18 C.R. (5th) 219 (Ont. C.A.).

Secondar y Materiality and Your Own W itness 489

3. SECONDARILY M ATERI AL E XPERT

EV IDENCE

A party may call an expert witness to testify about facts relevant to

the credibility of one of their witnesses where those facts are likely

to be beyond the experience of the trier of fact. The rule against

oath-helping prevents the expert from going so far as to testify that

the witness is likely to be telling the truth.

In some cases, factors relevant to the credibility of a witness are beyond

the ordinary experience and underst anding of lay triers of fact. With-

out the assistance of experts, lay triers of fact are apt to make erroneous

assumptions about credibility. For example, laypersons may not ap-

preciate that children cannot be e xpected to notice time and place the

way that adults do, or that sexually abused children are prone to fan-

tasize or to retract their allegations.8 Or they may not appreciate th at

the professed inability to recall can be the result of hysterical amnesia.9

Where common experience does not provide the tools needed to assess

the credibility of a witness, a party wil l be entitled to ca ll an exper t to

provide that information, even though the testimony of the expert does

nothing more than support the credibility of another witne ss.10

This practice is not without its limits. The modern rule against oath-

helping prevents expert witnesses from offering the opinion that a par-

ticular witnes s is telling the truth. The expert can provide background

information relevant to the credibility of a witness, but not information

directly about the credibility of what a witness is say ing.11

4. PRIOR CONSISTENT STATEMENTS

4.1) The Rule against Proof of Previous Consistent

Statements

It is generally impermissible to prove t hat at some ti me before te stify-

ing, a w itness made statements consistent w ith her testimony. This i s

8 See, for example, R. v. J.(F.E.) (1990), 74 C.R. (3d) 296 (Ont. C.A.).

9 R. v. Clark (1983), 35 C.R. (2d) 357 (Ont. C.A.).

10 The l aw was once more guarded about admitt ing such evidence. See, for ex-

ample, R. v. Kyselka (1962), 37 C.R. 391 (Ont. C.A.), and R. v. Béland (sub nom.

Béland v. R.) (1987), 60 C.R. (3d) 1 (S.C.C.).

11 S ee, generally, chapter 6, section 3.3, “The Rule against O ath-helping.”