Corroboration

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 95743)

General Principles

See also: Analyzing Testimony

Corroborative evidence (also called "confirmatory" or "supportive" evidence) refers to evidence that has the effect of "adding of strength or reinforcement from an independent source for the truth and accuracy of the [witness's] evidence."[1]

No Common Law Requirement for Corroboration

There is no common law rule requiring corroboration in order to convict. A judge can reasonably find guilt based solely on the evidence a single witness.[2]

There is no rule requiring that intoxicated complainants must be corroborated to be relied upon for conviction.[3]

Uncontradicted Testimony

Where the testimony of a witness is uncontradicted, the trier-of-fact may rely on this in their assessment of credibility and reliability, however, need not accept the testimony as fact.[4]

Requirement of Independence

For evidence to be corroborative, it must be independent.[5] Independent evidence may be circumstantial even where it does not meet the Hodge's Rule.[6] It is the independence of the corroborative evidence that makes the evidence "capable of restoring the trier’s faith in the relevant aspects of the witness’ account."[7]

Analysis of Corroboration

When considering the credibility of a complainant whose evidence may be subject to significant inconsistencies or contradictions, the judge need to look for corroboration implicating the accused. There should simply be evidence that is "capable of restoring the trier's faith in the complainant's account."[8]

Where credibility assessment requires confirmatory evidence of a crown witness, it need only be capable of affirming the trier-of-fact's faith in the complainant's account.[9]

Evidence Corroborating of Both Theories

Evidence that supports the complainant's evidence but is also consistent with the accused's evidence may still be used as corroborative evidence.[10] However, the judge may not use evidence that "equally supports competing accounts" to "selectively" support one side and not the other.[11]

Corroboration of Tainted Witnesses

Suspicious or tainted witnesses can corroborate each other's evidence as long as the Crown disproves collusion.[12]

In analyzing credibility it is not necessary that there be corroborative evidence that specially implicates the accused, but it should have the effect of "restoring the trier’s faith in the witness’s testimony."[13]

Corroboration With Records

Testimony that corroborates records, even those created by the accused, can be an admissible form of evidence.[14]

Accomplices

Where more than one accused is tried, confirmatory evidence from an accomplice is only admissible as confirmatory if the evidence is otherwise admissible against the accused.[15]

Appeal

What constitutes corroboration is a question of law and is reviewable on a standard of correctness.[16] Whether corroboration is needed to establish a fact is also a question of law.[17]

  1. ↑ R v Aksidan, 2006 BCCA 258 (CanLII), 209 CCC (3d) 423, per D Smith JA, at para 44 ("[T]he adjectives “corroborative”, “confirmatory”, and “supportive”, which, when applied to evidence, connote the adding of strength or reinforcement from an independent source for the truth and accuracy of the complainant’s evidence")
  2. ↑ R v G(A), 2000 SCC 17 (CanLII), [2000] 1 SCR 439, per Arbour J, at pp. 453-4
    R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811, per Dickson J, at pp. 819-820
  3. ↑ R v AW, 2008 NLCA 52 (CanLII), 856 APR 199, per Rowe JA
  4. ↑ R v Prokofiew, 2012 SCC 49 (CanLII), per Moldaver J, at para 11
  5. ↑ R v B(G), 1990 CanLII 113 (SCC), [1990] 2 SCR 3, per Wilson J
    R v Warkentin, 1976 CanLII 190 (SCC), [1977] 2 SCR 355, per de Grandpré J
    R v Dowe, 2007 NSCA 128 (CanLII), 228 CCC (3d) 75, per Cromwell JA, at para 40, 228 CCC (3d) 75, aff’d 2008 SCC 55 (CanLII), [2008] 3 SCR 109, per McLachlin CJ
  6. ↑ e.g. see R v Demeter, 1975 CanLII 50 (ON CA), per curiam
    R v Boyce, 1975 CanLII 569 (ON CA), 23 CCC (2d) 16, per Martin JA
  7. ↑ Dowe, supra, at para 40
  8. ↑ R v Wylie, 2012 ONSC 1077 (CanLII), OJ No 1220, per Hill J, at para 87
  9. ↑ Kehler v The Queen, 2004 SCC 11 (CanLII), [2004] 1 SCR 328, per Fish J, at pp. 5-6
    R v Betker, 1997 CanLII 1902 (ON CA), 115 CCC (3d) 421, per Moldaver JA, at p. 429 (leave to appeal refused [1997] SCCA No 461, [1998] 1 SCR vi)
    R v Michaud, 1996 CanLII 211 (SCC), [1996] 2 SCR 458, per Sopinka J, at p. 459
  10. ↑ R v Brown, 2022 ONCA 417 (CanLII), per Miller JA, at para 22
  11. ↑ R v Casarsa, 2023 ONCA 826 (CanLII), per curiam, at paras 9 to 12
  12. ↑ R v Winmill, 1999 CanLII 1353 (ON CA), 131 CCC (3d) 380, per Osborne JA, at p. 409
    R v Linklater, 2009 ONCA 172 (CanLII), [2009] OJ No 771 (CA), per curiam, at paras 11 to 12
    R v Delorme, 2010 NWTCA 2 (CanLII), [2010] NWTJ No 28 (CA), per curiam, at paras 26 to 30
    R v Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525, per Wilson J, at p. 554
    R v Naicker, 2007 BCCA 608 (CanLII), 229 CCC (3d) 187, per Lowry JA, at para 34 (leave to appeal refused [2008] SCCA No 45)
    R v Korski, 2009 MBCA 37 (CanLII), 244 CCC (3d) 452, per Steel JA, at para 146
    R v G(WG), 2002 CanLII 41634 (ON CA), OAC 305, per Charron JA, at paras 3, 5
  13. ↑ R v MC, 2014 ONCA 307 (CanLII), 308 CCC (3d) 318, per LaForme JA, at para 43
  14. ↑ See R v DDS, 2006 NSCA 34 (CanLII), 207 CCC (3d) 319, per Saunders JA, at para 18
  15. ↑ R v Perciballi, 2001 CanLII 13394 (ON CA), 154 CCC (3d) 481, per Charron JA (2:1) aff'd 2002 SCC 51 (CanLII), [2002] 2 SCR 761, per McLachlin CJ
    R v Fairbarn, 2020 ONCA 784 (CanLII), at para 48
  16. ↑ R v Parish, 1968 CanLII 120 (SCC), [1968] SCR 466, per Ritchie J
    R v Smith, 2009 ABCA 230 (CanLII), 460 AR 288, per curiam
  17. ↑ R v Hubin, 1927 CanLII 79 (SCC), [1927] SCR 442, per Aniglin CJ
    R v Steele, 1924 CanLII 449 (SCC), 42 CCC 375 (SCC), per Idington J

Types of Corroboration

Types of corroboration include:

Where Corroboration is Required

When proving the following offence, corroboration is required:

Prior versions of the Criminal Code required corroboration for several sexual offences. These have now been abolished by way of s. 274.

Corroboration is also required for "Vetrovec witnesses" (ie. those witnesses that are considered "disreputable").

The approach to hearsay under Bradshaw also puts considerable importance on corroboration.[4]

  1. ↑ s. 47(3) "No person shall be convicted of high treason or treason on the evidence of only one witness, unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused."
  2. ↑ 133 ("No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.")
  3. ↑ s. 292 ("No person shall be convicted of an offence under this section on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.")
  4. ↑
    See also: Hearsay

When Corroboration is Not Required

Unless otherwise statutorily enacted, no offence requires corroboration at common law. While there are common law rules where reliability issues may require corroboration (see e.g. Vetrovec witnesses and Bradshaw statements), it does not depend on the offence charged. Historically, however, there were certain sexual offences that would require corroboration.

Prior to 1983 there was a statutory requirement for corroboration for various sexual offences.

This requirement was modified in January 4, 1983[1] with the repeal of s. 139 requiring corroboration for the following offences:

  • 148 – sexual intercourse with feeble-minded person
  • 150 – incest
  • 151 – seduction of female between sixteen and eighteen
  • 152 – seduction under promise of marriage
  • 153 – sexual intercourse with step-daughter, foster daughter or female employee
  • 154 – seduction of female passengers on vessels
  • 166 – parent or guardian procuring defilement.

The 1983 amendment also added s. 246.4, which stated:

246.4 Where an accused is charged with an offence under section 150 (incest), 157 (gross indecency), 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 246.3 (aggravated sexual assault), no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.

–

This section was found to not operate retroactively.[2]

On January 1, 1988, an additional amendment was made, modifying s. 246.4.[3]

The 1988 amendments removed the corroboration requirements for the following sexual offences:

  • 140 – sexual interference
  • 141 – invitation to sexual touching
  • 146 – sexual exploitation
  • 154 – anal intercourse
  • 155 – bestiality
  • 167 – householder permitting sexual activity
  • 168 – corrupting children
  • 169 – indecent assaults
  • 195 – procuring sexual intercourse
  • 246.1 – sexual assault
  • 246.2 – sexual assault with a weapon or causing bodily harm
  • 246.3 – aggravated sexual assault.

The 1988 removal of corroboration was found to be retrospective to all sexual offences previously requiring corroboration.[4]

The current statutory pronouncement on corroboration simply abolishes any prior statutory or older common law rules on corroboration for sexual offences. Section 274 states:

Corroboration not required

274 If an accused is charged with an offence under section 151 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled], 155 [incest], 160 [bestiality], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 172 [corrupting children], 173 [Indecent acts], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault], 286.1 [comm. to obtain sexual services for consideration], 286.2 [material benefit from sexual services provided] or 286.3 [procuring], no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.
R.S., 1985, c. C-46, s. 274; R.S., 1985, c. 19 (3rd Supp.), s. 11; 2002, c. 13, s. 12; 2014, c. 25, s. 16; 2019, c. 25, s. 99.

– CCC (CanLII), (DOJ)

Note up: 274

The offences list s. 274 consist of:

Similarly, any rules requiring children's evidence to be corroborated has been abolished.

Children’s evidence

659 Any requirement whereby it is mandatory for a court to give the jury a warning about convicting an accused on the evidence of a child is abrogated.
R.S., 1985, c. C-46, s. 659; R.S., 1985, c. 19 (3rd Supp.), s. 15; 1993, c. 45, s. 9.

– CCC (CanLII), (DOJ)

Note up: 659

  1. ↑ S.C. 1980-81-82-83, c. 125, assented to October 27, 1982, proclaimed in force January 4, 1983 (SI/83-10).
  2. ↑ R v AD, 2005 SKCA 21 (CanLII), 193 CCC (3d) 314, per Jackson JA
  3. ↑ S.C. 1987, c. 24, assented to June 30, 1987, proclaimed in force January 1, 1988 (SI/87-259).
  4. ↑ AD, ibid.

See Also

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