Corroboration: Difference between revisions
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==General Principles== | ==General Principles== | ||
{{seealso|Analyzing Testimony}} | {{seealso|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".<ref> | |||
R v Aksidan, 2006 BCCA 258 (CanLII) 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")<br> | |||
</ref> | |||
'''No Common Law Requirement for Corroboration'''<br> | |||
There is no common law rule requiring corroboration in order to convict. A judge can reasonably find guilt based soley on the evidence a single witness.<Ref> | There is no common law rule requiring corroboration in order to convict. A judge can reasonably find guilt based soley on the evidence a single witness.<Ref> | ||
R v G.(A.), [http://canlii.ca/t/5264 2000 SCC 17] (CanLII), [2000] 1 SCR 439, at pp. 453-4<br> | R v G.(A.), [http://canlii.ca/t/5264 2000 SCC 17] (CanLII), [2000] 1 SCR 439, at pp. 453-4<br> | ||
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</ref> | </ref> | ||
There is no rule requiring that intoxicated complainants must be corroborated to be relied upon for conviction.<ref> | |||
R v A.W., [http://canlii.ca/t/217c8 2008 NLCA 52] (CanLII)</ref> | |||
'''Uncontradicted Testimony'''<br> | |||
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.<ref> | 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.<ref> | ||
R v Prokofiew, [http://canlii.ca/t/ft54b 2012 SCC 49] (CanLII) at para 11 | R v Prokofiew, [http://canlii.ca/t/ft54b 2012 SCC 49] (CanLII) at para 11 | ||
</ref> | </ref> | ||
'''Requirement of Independence'''<br> | |||
For evidence to be corroborative it must be independent.<ref> | For evidence to be corroborative it must be independent.<ref> | ||
R v B. (G.), [http://canlii.ca/t/1fsw4 1990 CanLII 113] (SCC), [1990] 2 SCR 3<br> | R v B. (G.), [http://canlii.ca/t/1fsw4 1990 CanLII 113] (SCC), [1990] 2 SCR 3<br> | ||
Warkentin | R v Warkentin, [http://canlii.ca/t/1z6b5 1976 CanLII 190] (SCC), [1977] 2 SCR 355<br> | ||
R v Dowe, 2007 NSCA 128 (CanLII), per Cromwell JA (as he was), at para. 40, 228 C.C.C. (3d) 75, aff’d 2008 SCC 55 (CanLII), [2008] 3 S.C.R. 109<br> | |||
</ref> Independent evidence may be circumstantial even where it does not meet the Hodge's Rule.<ref> | </ref> Independent evidence may be circumstantial even where it does not meet the Hodge's Rule.<ref> | ||
e.g. see R v Demeter, [http://canlii.ca/t/1vln3 1975 CanLII 50] (ON CA)<br> | e.g. see R v Demeter, [http://canlii.ca/t/1vln3 1975 CanLII 50] (ON CA)<br> | ||
R v Boyce, [http://canlii.ca/t/g18qv 1975 CanLII 569] (ON CA) | R v Boyce, [http://canlii.ca/t/g18qv 1975 CanLII 569] (ON CA) | ||
</ref> | </ref> | ||
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".<ref> | |||
Dowe{{supra}} at para 40<br> | |||
</ref> | |||
'''Analysis of Corroboration'''<br> | |||
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".<Ref> | 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".<Ref> | ||
R v Wylie, [http://canlii.ca/t/fqn6w 2012 ONSC 1077] (CanLII) at para 87<br> | R v Wylie, [http://canlii.ca/t/fqn6w 2012 ONSC 1077] (CanLII) at para 87<br> | ||
</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
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</ref> | </ref> | ||
'''Corroboration of Tainted Witnesses''' | |||
Suspicious or tainted witnesses can corroborate each other's evidence as long as the Crown disproves collusion.<ref> | Suspicious or tainted witnesses can corroborate each other's evidence as long as the Crown disproves collusion.<ref> | ||
R v Winmill [http://canlii.ca/t/1f97f 1999 CanLII 1353] (ON CA), (1999), 131 CCC (3d) 380 (Ont. C.A.), at p. 409<br> | R v Winmill [http://canlii.ca/t/1f97f 1999 CanLII 1353] (ON CA), (1999), 131 CCC (3d) 380 (Ont. C.A.), at p. 409<br> | ||
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</ref> | </ref> | ||
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".<ref> | |||
R v M.C., [http://canlii.ca/t/g6lkb 2014 ONCA 307] (CanLII) at para 43<br> | |||
</ref> | |||
'''Corroboration With Records'''<Br> | |||
Testimony that corroborates records, even those created by the accused, can be an admissible form of evidence.<Ref> | Testimony that corroborates records, even those created by the accused, can be an admissible form of evidence.<Ref> | ||
See R v S. (D.D.), [http://canlii.ca/t/1x6db 2006 NSCA 34] (CanLII) at para 18<br> | See R v S. (D.D.), [http://canlii.ca/t/1x6db 2006 NSCA 34] (CanLII) at para 18<br> | ||
</ref> | </ref> | ||
Revision as of 09:51, 5 April 2018
General Principles
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 soley 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]
Corroboration of Tainted Witnesses Suspicious or tainted witnesses can corroborate each other's evidence as long as the Crown disproves collusion.[10]
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".[11]
Corroboration With Records
Testimony that corroborates records, even those created by the accused, can be an admissible form of evidence.[12]
Appeal
What constitutes corroboration is a question of law and is reviewable on a standard of correctness.[13]
Whether corroboration is needed to establish a fact is also a question of law.[14]
- ↑
R v Aksidan, 2006 BCCA 258 (CanLII) 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")
- ↑
R v G.(A.), 2000 SCC 17 (CanLII), [2000] 1 SCR 439, at pp. 453-4
R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811, at pp. 819-820
- ↑ R v A.W., 2008 NLCA 52 (CanLII)
- ↑ R v Prokofiew, 2012 SCC 49 (CanLII) at para 11
- ↑
R v B. (G.), 1990 CanLII 113 (SCC), [1990] 2 SCR 3
R v Warkentin, 1976 CanLII 190 (SCC), [1977] 2 SCR 355
R v Dowe, 2007 NSCA 128 (CanLII), per Cromwell JA (as he was), at para. 40, 228 C.C.C. (3d) 75, aff’d 2008 SCC 55 (CanLII), [2008] 3 S.C.R. 109
- ↑
e.g. see R v Demeter, 1975 CanLII 50 (ON CA)
R v Boyce, 1975 CanLII 569 (ON CA) - ↑
Dowe, supra at para 40
- ↑
R v Wylie, 2012 ONSC 1077 (CanLII) at para 87
- ↑
Kehler v The Queen, 2004 SCC 11 (CanLII), (2004), 181 CCC (3d) 1 (S.C.C.), at p. 5-6
R v Betker, 1997 CanLII 1902 (ON CA), (1997), 115 CCC (3d) 421 (Ont. C.A.), at p. 429 (leave to appeal refused [1997] S.C.C.A. No. 461, [1998] 1 SCR vi)
R v Michaud, 1996 CanLII 211 (SCC), [1996] 2 SCR 458, at p. 459
- ↑
R v Winmill 1999 CanLII 1353 (ON CA), (1999), 131 CCC (3d) 380 (Ont. C.A.), at p. 409
R v Linklater, [2009] O.J. No. 771 (C.A.), at paras 11-12
R v Delorme, [2010] N.W.T.J. No. 28 (C.A.), at paras 26-30
R v Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525, at p. 554
R v Naicker 2007 BCCA 608 (CanLII), (2008), 229 CCC (3d) 187 (BCCA), at para 34 (leave to appeal refused [2008] S.C.C.A. No 45)
R v Korski, 2009 MBCA 37 (CanLII), (2009), 244 CCC (3d) 452 (Man. C.A.) at para 146
R v G.(W.G.), 2002 CanLII 41634 (ON CA), (2002), 158 O.A.C. 305 (Ont. C.A.), at paras 3, 5
- ↑
R v M.C., 2014 ONCA 307 (CanLII) at para 43
- ↑
See R v S. (D.D.), 2006 NSCA 34 (CanLII) at para 18
- ↑
R v Parish, 1968 CanLII 120 (SCC), [1968] SCR 466
R v Smith, 2009 ABCA 230 (CanLII) - ↑
R v Hubin, 1927 CanLII 79 (SCC), [1927] SCR 442
R v Steele (1924), 42 CCC 375 (SCC)
Types of Corroboration
Types of corroboration include:
- Post-Offence Conduct of accused
- Confessions of the accused
- Circumstantial Evidence of the accused's or complaint's presence
Where Corroboration is Required
When proving the following offence corroboration is required:
- Treason (s. 47)[1]
- Perjury (s. 131)[2]
- Procuring a Feigned Marriage (s. 291)[3]
- Forgery (s. 366, 367)
Prior versions of the Criminal Code required corroboration for several sexual offences. These have now been abolished by way of s. 274.
When Corroboration is Not Required
Corroboration not required
274. If an accused is charged with an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 271, 272, 273, 286.1, 286.2 or 286.3, 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.
– CCC
The offences list s. 274 consist of:
- Sexual Interference (151)
- Invitation to Sexual Touching (152)
- Sexual Exploitation (153 or 153.1)
- Incest (155)
- Anal Intercourse (159)
- Bestiality (160)
- Parent or guardian procuring sexual activity (170)
- Householder permitting sexual activity (171)
- Corrupting Children (172)
- Indecent Acts (173)
- Sexual Assault (271)
- Sexual Assault with a Weapon (272)
- Sexual Assault Causing Bodily Harm (272)
- Aggravated Sexual Assault (273)
- Obtaining sexual services for consideration (286.1)
- Material benefit from sexual services (286.2)
- Procuring (286.3)
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
- ↑ 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."
- ↑ 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.")
- ↑ 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.")