Evidentiary
Issues
7
I. Introduction ............................................. 164
II. Hearsay Evidence ......................................... 164
III. Prior Consistent Statements ................................ 183
IV. Similar Fact Evidence ...................................... 189
V. Credibility Assessments .................................... 203
VI. Myths and Stereotypes .................................... 209
VII. Character Evidence ........................................ 219
VIII. The Rule in Browne v Dunn ................................. 224
© [2020] Emond Montgomery Publications. All Rights Reserved.
Prosecuting and Defending Sexual Oence Cases
I. Introduction
Since the purpose of the criminal trial is to get at the truth, the fact finder must be
limited to a consideration of facts that are relevant and properly utilized. Courts must
guard against the admission of irrelevant evidence that may confuse or mislead the
trier of fact. The “good” evidence should be admitted in a trial while the “bad” evi-
dence must be denied. Figuring out what happened in a trial requires sustained atten-
tion to the purpose by which evidence is received and used by the trier of fact, and the
case-specific relevance of such evidence. The objectives are to ensure that only the
guilty are punished and that dangerous and improper inferences are avoided so that
there is no miscarriage of justice.
Traditionally, evidence law in Canada relied on a category approach, where certain
pieces of evidence were only admissible if they fit into a recognized category. In the
past few decades, courts have moved to a principled approach, which considers fac-
tors such as probative value versus prejudicial eect, necessity and reliability, and
the need to ensure that a trier of fact has a full and complete picture. The principled
approach is flexible enough that it permits the admission of evidence that intuitively
warrants entry into the evidentiary matrix, but that does not “fit” into a recognized
exception or category. Furthermore, it takes into account other competing interests,
such as social policy and values under the Canadian Charter of Rights and Freedoms.1
This chapter will cover the following areas, which frequently arise in criminal pro-
ceedings involving sexual oences, and that are important for any counsel who is
prosecuting or defending cases in evidence law to know:
1. hearsay evidence,
2. prior consistent statements,
3. similar fact evidence,
4. credibility assessments,
5. myths and stereotypes,
6. character evidence, and
7. the rule in Browne v Dunn.2
II. Hearsay Evidence
Hearsay evidence is an out-of-court statement that is admitted for its truth in a court
proceeding. Hearsay can be spoken words or non-verbal conduct.3 Ordinarily, an
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[the Charter].
2 (1893), 6 R 67 (HL).
3 Non-verbal conduct can be assertive or non-assertive. Assertive conduct is non-verbal conduct
that is intended as an assertion. This includes shrugs, headshakes, pointing, or other gestures.
Non-assertive conduct is conduct, by words or actions or both, from which an inference in
relation to the declarant’s belief could be made. Non-assertive conduct is not necessarily hear-
say and has to be assessed on a case-by-case basis: see R v Badgerow, 2014 ONCA 272.
© [2020] Emond Montgomery Publications. All Rights Reserved.
Chapter 7 Evidentiary Issues
out-of-court statement is inadmissible, since it comes second-hand and is thus unre-
liable. However, from time to time, the Crown (or less frequently the accused) will
seek admission of hearsay evidence in order to provide the trier of fact with all of the
relevant evidence necessary to decide the case.
The usual diculty in testing the reliability of hearsay evidence stems from two
factors: (1)the out-of-court character of a hearsay statement, which makes it dicult to
prove, not only for the fact that it was made, but also for the truth of its contents; and
(2)the absence of a contemporaneous opportunity to cross-examine the maker of the
statement.4 The exclusionary rule exists to guard against a trier of fact giving untested
hearsay evidence more weight than it deserves. However, the goal of the criminal
justice system is truth-seeking; therefore, if these hearsay concerns can besuciently
overcome, then the trier of fact should not be denied the use of the evidence.5
There are a number of traditional common law exceptions to the hearsay rule that
are justified based on their inherent reliability (e.g., dying declarations, spontaneous
utterances, and admissions against interest).6 More commonly, hearsay evidence is
admitted pursuant to the principled exception to the hearsay rule, which provides that
hearsay evidence will be admissible where it is “necessary” and “reliable.”7
In the context of sexual oences, principled hearsay evidence is admitted in two
common circumstances:
1. when a witness recants or forgets evidence; or
2. when a witness is unable to testify.
A. The Recanting or Forgetful Witness: KGB Applications
Sometimes witnesses are not completely forthcoming in their testimony. They may
also recant evidence, refuse to answer questions, or “forget.” When this occurs,
counsel is unable to obtain the necessary evidence to establish the relevant facts to
support their case. If the recanting or forgetful witness is the victim in a sexual assault
case, the Crown may not be able to prove that the oence has been committed. This is
common in domestic abuse cases where there may be pressure on a victim to retract
the original statement alleging abuse by the accused (social, financial, and emotional
pressures are common examples). Where a witness forgets or recants evidence, there
are a number of ways for counsel calling the witness to proceed initially, depending
on the circumstances:
1. refresh the witness’s memory,
2. utilize a past recorded recollection,
4 R v Khelawon, 2006 SCC 57 at paras 35-41; R v Starr, 2000 SCC 40 at para 167; Subramanian
v Public Prosecutor (1956), 1 WLR 965 at 970 (PC); R v Smith, [1992] 2 SCR 915, 75 CCC (3d)
257 at para 20.
5 Khelawon, supra note 4 at para 63.
6 Ibid at para 64.
7 R v Mapara, 2005 SCC 23 at para 15.
© [2020] Emond Montgomery Publications. All Rights Reserved.
