Secondary Materiality and Your Own Witness

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 624-669

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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).