Secondary Materiality and Your Own Witness

AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
As a general rule, a party may not a sk questions or present evi-
dence solely to bolster the credibility of one of its own witnesses.
At common law, unless and until their credibil ity had been made
an issue by the opposing party, the witnesses called by a party were
assumed to be tr ustworthy and of good character.1 This rule encour-
aged trial efficiency by making it unnecessa ry for parties to initi ate
proof about the quality of the witnes ses they were calling. This common
law presumption of trust worthiness or good character ha s now been
overtaken by the modern “r ule against oath-helping,” which prohibits
parties from initiating proof about the credibility of their w itnesses or
the testimony they give.2 The modern rule against oath-helping dis-
courages potentially protracted collateral inquiries into the quality of
witnesses or their evidence. It is also meant to ensure t hat triers of fact
make their own determinations of credibility without undue reliance
on the credibility assessments made by other witne sses.3 To be clear,
1 R v Giraldi (1975), 28 CCC (2d) 248 (BCCA), leave to appeal to SCC refused
(1975), 28 CCC (2d) 248 n (SCC).
2 R v B(FF), [1993] 1 SCR 697 at 729; R v Béland, [1987] 2 SCR 398 at 408
[Béland]; R v Santhosh, 2016 ONCA 731 at paras 33–35 [Santhosh].
3 R v Marqu ard (1993), 25 CR (4th) 1 (SCC) at para 49.
Secondar y Materiality and Your Own Wit ness 625
neither the common law presumption of trust worthiness or good char-
acter nor the modern rule against “oath helping” inst ructs triers of fact
to assume that evidence called by a party is accurate un less it has been
successf ully attac ked.4 Starting from such an as sumption would be
inconsistent with the a ssigned burdens of proof, particularly in crim-
inal case s, and it would dull the importa nt enterprise of having triers of
fact assess t he credibility and reliability of ev idence on a case-by-case
basis, in light of all the circumstances. The rule again st oath-helping
is simply a general rule of admis sibility, which, subject to exceptions,
prevents parties from ca lling evidence solely to bolster the credibilit y
of their other witnesses or of the other evidence they have called.
In R v Siu, this rule was contravened where a police officer stated th at
he believed the key Crown witne ss.5 The rule was further breached when
the officer testified t hat his belief was bas ed in part on the offer of the
Crown witness to t ake a polygraph test, since polygraph evidence is not
admissible as proof of credibilit y.6 Where a party leads inadmissible evi-
dence to support the credibility of one of its witne sses in a jury trial, the
trial judge should immediately d irect the jury to disregard that ev idence.7
There are times when evidence logically c apable of supporting
oath-helping inferences is properly admitted for other purposes. Where
this occurs, the evidence must be limited to its proper purpose, and not
used as proof that the w itness whose evidence the oath-helping infer-
ence supports is a credible or trustworthy source of information.8 For
example, in R v Santhosh,9 evidence that the complainant prayed after
allegedly being sexually assaulted was admi ssible as narrative or back-
ground evidence to assist t he complainant in describing the alleged event.
The trial judge erred in usi ng this evidence for the oath-helping pur-
pose of drawing the inference that the complainant’s faith enhanced her
credibility and hence the cred ibility of her evidence.10 In contrast, there
is no prohibition against using prim arily material ev idence to assist in
finding that other pr imarily materi al evidence is accurate. For example,
if two independent witness es describe the same event the same way, a
trier of fact is entitled to consider t he mutual support of their testimony
4 R v Thain (2009), 243 CCC (3d) 230 (Ont CA) at para 32.
5 R v Siu (1998), 124 CCC (3d) 301 (BCCA) [Siu]. And see R v Austin (2006), 214
CCC (3d) 38 (Ont CA) at 47 [Austin].
6 Béland, above note 2.
7 Siu, above note 5.
8 Santhosh, above note 2 at paras 4 0–47.
9 Ibid.
10 It is an error of law to u se religious beliefs in t his way, as they are irrelevant for
this pur pose, and prejudicial: ibid, and se e also R v Minuskin (2003), 68 OR (3d)
577 (CA) at paras 30–31.
in crediting what each w itness says. The prohibition is on “oath-helping”
in the narrow sen se of offering evidence to prove the trustwort hiness of
a party’s witne sses, or using evidence admitted for other purposes as i f it
were about the trustworthiness of a party’s witnesses.
At the same time, it is permissible and indeed customary to intro-
duce a witness to the court. It is common to see w itnesses provide
their age and describe t heir family and employment status and their
connection to the case. Frequently, counsel will attempt to introduce
their witnes ses in a way that will enhance the w itness’s credibility. The
line between permissible introduct ion and imper missible “bolstering”
is not a sharp one, and determining when that line has been crossed
is a question of judgment. In R v Clarke, that line was cros sed when a
police informant testi fied that he was allowed to leave the prison for
street visits, was studying the Bible, attended Alcoholics Anonymous,
and had reformed his criminal ways.11
By way of exception to the rule against oath helping, as a n indulgence
to the accused in a cri minal case, the accused can prove their good
character in limited ways. Such evidence is considered relevant both
to the primar ily material issue of whether the accused committed the
offence charged and to the secondari ly material issue of the credibility
of the accused as a witne ss.12 The methods for presenting 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.13 In particular, the testify ing accused can assert their ow n
honesty, and other witnesses can b e called to testify as to the reputation
of the accused for truthfulness and veracity.14 If the accused chooses to
put their character in issue in either of these ways, the Crown will be
entitled to rebut the claim to good character by cross-examin ing the
accused or character wit ness, or by calling other wit nesses who will
testify to the accu sed’s bad reputation for trustworthiness or sincer ity.
11 R v Clarke (1981), 63 CCC (2d) 224 (Alta CA).
12 R v H(CW) (1991), 68 CCC (3d) 146 (BCCA).
13 See Chapter 3, Section 11, “Good Charact er Evidence and Modes of
Presentat ion.”
14 R v Clarke (1998), 18 CR (5th) 219 (Ont CA).

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