Secondary Materiality and Your Own Witness

AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
Pages624-669
624
CHAPTER 11
SECONDARY
MATERIALITY AND
YOUR OWN WITNESS
1. THE BAR 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 one of its own witnesses.
At common law, unless and until their credibility had been made
an issue by the opposing party, the witnesses called by a party were
assumed to be trustworthy and of good character.1 This rule encour-
aged trial efficiency by making it unnecessary for parties to initiate
proof about the quality of the witnes ses they were calling. This common
law presumption of trustworthiness or good character has now been
overtaken by the modern “rule against oath-helping,” which prohibits
parties from initiating proof about the credibility of their witnesses 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 that triers of fact
make their own determinations of credibility without undue reliance
on the credibility assessments made by other witnesses.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 ness625
neither the common law presumption of trustworthiness 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 unless it has been
successfully attacked.4 Starting from such an assumption would be
inconsistent with the assigned burdens of proof, particularly in crim-
inal case s, and it would dull the importa nt enterprise of having triers of
fact assess the credibility and reliability of evidence on a case-by-case
basis, in light of all the circumstances. The rule against oath-helping
is simply a general rule of admissibility, which, subject to exceptions,
prevents parties from calling evidence solely to bolster the credibility
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 that his belief was based in part on the offer of the
Crown witness to take a polygraph test, since polygraph evidence is not
admissible as proof of credibility.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 capable 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 witness 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 admissible as narrative or back-
ground evidence to assist t he complainant in describing the alleged event.
The trial judge erred in using this evidence for the oath-helping pur-
pose of drawing the inference that the complainant’s faith enhanced her
credibility and hence the credibility of her evidence.10 In contrast, there
is no prohibition against using primarily material evidence to assist in
finding that other primarily material evidence is accurate. For example,
if two independent witnesses describe the same event the same way, a
trier of fact is entitled to consider the 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.
10It 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.
THE LAW OF EVIDENCE626
in crediting what each w itness says. The prohibition is on “oath-helping”
in the narrow sense of offering evidence to prove the trustworthiness 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 witnesses provide
their age and describe their 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 introduction and impermissible “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 crossed when a
police informant testified 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
2. GOOD CHAR ACTER EVIDENCE: THE
ACCUSED AS A WITNESS
By way of exception to the rule against oath helping, as an indulgence
to the accused in a criminal case, the accused can prove their good
character in limited ways. Such evidence is considered relevant both
to the primarily material issue of whether the accused committed the
offence charged and to the secondarily 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 own
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-examining the
accused or character witness, or by calling other witnesses who will
testify to the accused’s bad reputation for trustworthiness or sincerity.
11R v Clarke (1981), 63 CCC (2d) 224 (Alta CA).
12R v H(CW) (1991), 68 CCC (3d) 146 (BCCA).
13 See Chapter 3, Section 11, “Good Charact er Evidence and Modes of
Presentation.”
14R v Clarke (1998), 18 CR (5th) 219 (Ont CA).

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

Unlock full access with a free 7-day trial

Transform your legal research with vLex

  • Complete access to the largest collection of common law case law on one platform

  • Generate AI case summaries that instantly highlight key legal issues

  • Advanced search capabilities with precise filtering and sorting options

  • Comprehensive legal content with documents across 100+ jurisdictions

  • Trusted by 2 million professionals including top global firms

  • Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

vLex

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT