Court Of Appeal Cautions Counsel And Trial Judges About The Danger Of Loose Thinking About Admissibility Of Evidence - Orders A New Trial In Attempted Murder Case

• Published date: 21 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Moya Graham and Leah Ostler

An Ontario man was granted the right to a new trial by the Ontario Court of Appeal in R. v. Borel, 2021 ONCA 16. He was convicted by a jury on May 22, 2014 in relation to a July 2011 incident in which his girlfriend, the complainant, was badly burned. The complainant alleged that her boyfriend doused her in gasoline and lit her on fire. The appellant denied throwing gasoline on the complainant. While the appellant did not know how the fire started, the defence theory included the possibility that the complainant caused her own injuries by suicide attempt or by accident.

The Trial Judge admitted three pieces of evidence that were challenged on appeal: (i) opinion and demeanor evidence from the 911 dispatcher, (ii) opinion and demeanor evidence from the homicide detective, and (iii) statements made by the complainant to an EMS attendant shortly after the incident.

R. v. Borel is a reminder that the approach to the admissibility of evidence that goes to the core of a dispute requires a careful and stepwise approach. It begins with a question: For what purpose is this evidence being tendered? The party seeking to adduce the evidence must be prepared to answer this question. The other party must be poised to raise this question.

Opinion and Demeanor Evidence

In R. v. Borel, the Crown led opinion and demeanor evidence from two witnesses. The 911 dispatcher testified that the appellant's communications with the dispatcher were "unusual and troublesome". The homicide detective testified that the appellant did not behave like a person in custody for an offense they did not commit. Defence counsel did not object to this evidence from either witness at trial. The Trial Judge did not instruct the jury on the use of this evidence.

The Court of Appeal asked: for what purpose was this evidence being tendered? The answer: to suggest that the appellant was guilty. The evidence was entered for the truth of its contents. On this basis, the Court of Appeal concluded the evidence ought not to have been admitted. Opinion evidence about the credibility of another witness is inadmissible (R. v. Marquard, [1993] 4 S.C.R. 223) and evidence from a witness about the demeanor of another witness is "highly suspect" (R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27).

Neither witness was qualified as an expert. The Court of Appeal was particularly concerned that the jury heard an opinion that the appellant behaved like a guilty person from what would have appeared to them to be a highly experience police officer. The prejudicial effect of the evidence outweighed the probative value.

As this decision confirms, any evidence that invites a jury to substitute their own judgment in findings of fact for that of a witness should attract a high level of scrutiny.

Hearsay Evidence & Prior Consistent Statements

Hearsay is...