Collateral Fact Rule

From Criminal Law Notebook
This page was last substantively updated or reviewed March 2021. (Rev. # 95430)

General Principles

A collateral fact is a "fact not directly connected" or not relevant to "the issue in dispute"[1] The collateral fact rule prohibits the admission of any evidence that would tend to contradict any previously admitted collateral evidence. Any extrinsic contradictory evidence that brings a witness's credibility into question may not be considered where the contradictory evidence not relevant to an issue at trial.[2] When a witness speaks to a fact, the veracity of the testimony can only be brought into question where it is sufficiently material to a trial issue. Otherwise, it will fall up against the collateral fact rule that prohibits the calling of contradictory evidence on immaterial facts. Thus, testimony on collateral issues is conclusive. This rule has been codified in certain legislation including s. 10 and 11 of the CEA.

Collateral evidence is also characterized as evidence which derives its relevance only from the fact that it is admitted for the purpose of contradicting other evidence and nothing else.[3]

A foundational test for collateral fact is whether the evidence contradicting the statement of the witness could be validly led as evidence on its own.[4] Thus, statements to evidence that is not directly connected to a material fact cannot be contradicted.[5]

The rule equally applies in cases that turn on credibility.[6]

Purpose

The purpose behind the rule is to "avoid confusion", "proliferation of issues", "wasting time" and the introduction of evidence of negligible use.[7]

During Cross-examination

The CFR does not limit what is otherwise a valid question on cross-examination.[8] It may however limit where the examining party can introduce extrinsic evidence contradicting the witness.[9]

  1. ↑ R v MC, 2012 ONSC 882 (CanLII), per Thornburn J citing Black's law Dictionary
  2. ↑ R v Prebtani, 2008 ONCA 735 (CanLII), 240 CCC (3d) 237, per Rosenberg JA
    R v Cargill, 1950 CanLII 382 (MB CA), [1913] 2 KB 271 (C.C.A.)
    R v Hrechuk (1950), 10 CR 132(*no CanLII links) , at p. 135
    R v Rafael, 1972 CanLII 640 (ON CA), OR 238 (CA), per Arnup JA, at p. 330
    R v Latour, 1976 CanLII 145 (SCC), [1978] 1 SCR 361, per De Grandpre J, at p. 367
    R v Cassibo, 1982 CanLII 1953 (ON CA), OR (2d) 288, per Martin JA, at p. 506
    MC, supra
    R v Sanderson, 2017 ONCA 470 (CanLII), 349 CCC (3d) 129, per Pepall JA, at para 47
  3. ↑ R v JH, 2014 NLCA 25 (CanLII), per Harrington and Hoegg JJA, at para 33
  4. ↑ AG v Hitchcock (1847), 154 ER 38 (UK) at 42
    R v R(D), 1996 CanLII 207 (SCC), [1996] 2 SCR 291, per Major J
  5. ↑ R v Aalders, 1993 CanLII 99 (SCC), 82 CCC (3d) 215, per Cory J
  6. ↑ R v McIntosh, 1999 CanLII 1403 (ON CA), 141 CCC (3d) 97, per Weiler JA, at para 86
    R v Van Leeuwen, 2012 ONSC 132 (CanLII), per Durno J
    Prebtani, supra
  7. ↑ Sanderson, supra, at para 47 citing Watt's Manual of Criminal Evidence
    R v Trecartin, 2018 NBCA 49 (CanLII), per Lelaree JA, at para 21 ("The reason for the collateral evidence rule is to avoid unduly prolonging litigation by proving and disproving facts which do not really matter to the substance of the offences charged: .... The rationale of the rule is to promote trial efficiency.")
    R v Ryan, 2011 NLCA 53 (CanLII) (working hyperlinks pending)
  8. ↑ R v MacIsaac, 2017 ONCA 172 (CanLII), 347 CCC (3d) 37, per Trotter JA, at para 58 ("The collateral fact rule does not curtail what is otherwise proper cross-examination of a witness; it potentially limits the manner in which answers given may be subsequently challenged by extrinsic evidence")
  9. ↑ MacIsaac, ibid., at para 58 ("As is often said, if the questioner asks a question that bears on a collateral issue, he or she is “stuck” with the answer, in the sense of not being permitted to lead extrinsic evidence to contradict it. However, this does not prevent proper questions from being put in the first place")

Exceptions to the Rule

Exceptions exists for certain evidence going to credibility:[1]

  • existence of material previous statement[2]
  • prior convictions
  • honesty or history of lying
  • bias or partiality[3]
  • motive to fabricate[4]
  • bad reputation
  • perception
  • memory
  • ability to communicate.

Where a witness denies having an animus against the accused at the time of the offence may be contradicted with extrinsic evidence. However, where a witness concedes having an animus against the accused at the time of the offence, they may be cross-examined on an ongoing animus including at the time of trial. [5]

A collateral answer to a question does not prohibit otherwise valid cross-examination on this issue.[6]

Mental or Physical Disorders

A party may violate the collateral fact rule in presenting medical evidence to establish that by some mental or physical illness, the witness is incapable of giving reliable evidence, whether due to delusion or otherwise.[7]

  1. ↑ R v R(D), 1996 CanLII 207 (SCC), [1996] 2 SCR 291, per Major J
    R v Cassibo, 1982 CanLII 1953 (ON CA), OR (2d) 288 (CA), per Martin JA
    R v Biddle, 1995 CanLII 34 (SCC), [1995] 1 SCR 761, per Sopinka J
  2. ↑ Masztalar v Wiens, 1992 CanLII 5953 (BC CA), 2 WWR 706, per Cumming JA
  3. ↑ See R v Lindlau; however, if admitted more evidence cannot be lead
  4. ↑ R v P(G), 1996 CanLII 420 (ON CA), 112 CCC (3d), per Rosenberg JA
  5. ↑ R v Farquharson, 2002 CanLII 41775 (ON CA), per curiam
  6. ↑ R v MacIsaac, 2017 ONCA 172 (CanLII), 347 CCC (3d) 37, per Trotter JA, at para 58
    R v Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466, per McIntyre J, at pp. 474-475
    R v Khanna, 2016 ONCA 39 (CanLII), 127 WCB (2d) 613, per curiam, at para 9
  7. ↑ MacIsaac, supra, at para 59 - referred to as "Toohey evidence"
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