179
Evidentiary Issues
7
I. Introduction .............................................
II. Hearsay Evidence .........................................
III. Prior Consistent Statements ................................
IV. Similar Fact Evidence ......................................
V. Credibility Assessments ....................................
VI. Myths, Stereotypes, and Commonsense Assumptions ...........
VII. Character Evidence ........................................
VIII. The Rule in Brownev Dunn .................................
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180 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 excluded. Beyond the stage of admissibility, figuring out what hap-
pened in a trial requires sustained attention to the purpose for which evidence can be
received. The objectives are to ensure that only the guilty are punished.
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, whereby admissibil-
ity of evidence depends not on strict application rules but flexible consideration of
underlying principles, such as probative value and prejudicial eect, necessity and reli-
ability, and the interest that the trier of fact have a complete picture of the case. The
principled approach is flexible enough that it permits the admission of evidence that
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
proceedings involving sexual oences and that are important for any counsel who is
prosecuting or defending cases 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 Brownev 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 An out-of-court
statement tendered for its truth is presumptively admissible, since it comes
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[the Charter].
2 1893 CanLII 65, 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 Rv Badgerow, 2014 ONCA 272.
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Chapter Evidentiary Issues 181
second-hand and is thus unreliable. However, from time to time, the Crown (or less
frequently the accused) will seek admission of hearsay evidence 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 the fact that it was made but also 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, hearsay evidence is admitted under the prin-
cipled approach 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 domes-
tic 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 recollection recorded,
4 Rv Khelawon, 2006 SCC 57 at paras 35-41; Rv Starr, 2000 SCC 40 at para 167; Subramanian
v Public Prosecutor (1956), 1 WLR 965 at 970 (PC); Rv Smith, [1992] 2 SCR 915, 75 CCC (3d)
257 at para 20.
5 Rv Khelawon, ibid at para 63.
6 Ibid at para 64. An example of a spontaneous utterance admitted for its truth was the contents
of a 911 call in Rv Sylvain, 2014 ABCA 153.
7 Rv Mapara, 2005 SCC 23 at para 15.
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