|
Evidence - Collusion. R. v. S.S.
In R. v. S.S. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here brought against several sexual assault counts.
Here the court considered the related evidentiary issues of 'collusion' and similar fact evidence:[19] In his reasons the trial judge referred to the test in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, which permits presumptively inadmissible similar fact evidence to be put to the jury if the Crown proves on a balance of probabilities that its probative value (to an issue other than mere propensity) outweighs its prejudicial effect. The trial judge found that the evidence of each complainant in this case was admissible across counts as evidence that the alleged acts occurred because (i) irrespective of the differences, the circumstances surrounding their allegations were similar enough to support that inference, and (ii) there was no air of reality to the appellant’s allegation of collusion.
[20] An assessment of the probative value of proposed evidence depends largely on the “extent to which the proposed evidence supports the inferences the Crown seeks to make” and the “extent to which the matters the evidence tends to prove are live issues in the proceeding”: R. v. Z.W.C., 2021 ONCA 116, 155 O.R. (3d) 129, at para. 98. The material live issue the Crown sought to use the similar fact evidence to prove in this case was that the criminal acts the sisters alleged occurred. The cogency of the inference the Crown invites depends upon there being sufficient similarities to make it objectively improbable that the two sisters would “coincidentally give the same type of evidence” about the alleged acts: R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 17. “Striking similarity” is not generally required to yield probative value when similar fact evidence is being offered for this purpose: Norris, at para. 15. The determination of whether it does and whether that probative value outweighs the prejudice the evidence will cause is for the trial judge to make and is subject to a deferential standard of review: Norris, at para. 26. A trial judge’s decision on a similar fact application is owed substantial deference and should only be interfered with “if the analysis is unreasonable or if there is legal error or a misapprehension of material evidence”: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 42; R. v. J.H., 2018 ONCA 245, at para. 11. I see no basis for interfering with the trial judge’s assessment.
[21] As the Supreme Court held in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60, “the judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance”. That is to say, the analysis is not to be formulaic but rather an inquiry into whether, based on factors such as proximity in time, similar details or distinctive features, and circumstances surrounding or relating to the similar acts, there is a “persuasive degree of connection between the similar fact evidence and the offence charged”: Handy, at para. 82; Shearing, at para. 48.
....
[23] The trial judge’s focus on the circumstances surrounding the alleged assaults does not warrant appellate intervention. In Shearing, the Supreme Court acknowledged that although the sexual acts alleged were not particular or distinctive, underlying unity was found in the appellant’s abuse of authority in relation to the complainants: para. 50. And this court has held repeatedly that in sexual assault cases, “similar circumstances are often more compelling than similarities or dissimilarities in conduct”: R. v. S.C., 2018 ONCA 454, 361 C.C.C. (3d) 419, at paras. 23-26; R. v. B.(L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35 (Ont. C.A.), at pp. 52-53, leave to appeal refused, [1997] S.C.C.A. No. 524; R. v. A.E.S.P., 2022 ONCA 405, at para. 25; J.H., at paras. 19-21; R. v. J.C., 2021 ONCA 787, 407 C.C.C. (3d) 3, at paras. 68-72.
....
[27] Nor did the trial judge err in finding that the allegation of collusion did not have an “air of reality”. The framework articulated in Handy admits evidence for which, “absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence”: para. 41. In other words, collusion rebuts the improbability of coincidence. The “air of reality” test is engaged when a potential issue of collusion between witnesses arises. If there is an “air of reality” to an allegation that witnesses discussing the events may have colluded (purposely or inadvertently), the Crown must prove, on a balance of probabilities, that the similar fact evidence was not tainted by this collusion: Handy, at paras. 106, 112.
[28] It was open to the trial judge to find that there was no air of reality to the allegation of collusion between C.L. and P.L. on the record before him, which included C.L and P.L.’s credible testimony that they had not shared details of the abuse with each other. It is well-settled in this court’s jurisprudence that neither the opportunity to collude nor a “disclosure conversation” between complainants, is sufficient on its own to give rise to an “air of reality”: Handy, at para. 111-12; Shearing, at paras. 43-44; R. v. Wilkinson, 2017 ONCA 756, 356 C.C.C. (3d) 314, at para. 31. The trial judge properly heeded the warning to not jump to a conclusion about collusion “simply because of a conversation”: R. v. B.H., 2022 ONCA 812, at para. 19.
....
[30] In the end, the trial judge found the complainants’ evidence that they had not shared specific details of the assaults with one another to be credible. There is no basis to disturb this finding. Consistent with the Supreme Court’s decision in Handy, similar fact evidence must meet the threshold of being “reasonably capable of belief”, and trial judges are to consider the credibility of the similar fact evidence in exercising their gate-keeping function: para. 134. This court has similarly held that a trial judge is entitled to assess whether similar fact witnesses are credible and reliable in their analysis of possible collusion: R. v. T.D.A., 2017 ONCA 910, at paras. 10-11.
[31] It is true that a judge, sitting alone, would have to be careful at the admissibility stage about making definitive credibility findings (beyond whether the similar fact evidence is reasonably capable of belief), so as to not prejudge the issues before hearing all of the evidence and submissions on the trial proper. But this was a jury trial. The jurors in this case were not privy to what occurred at the similar fact voir dire, would not have been aware of the trial judge’s reasons for admitting the similar fact evidence (and specifically his explanation for rejecting the possibility of collusion), and in the final charge were instructed to draw their own conclusions about the complainants’ credibility. . Paddy-Cannon v. Canada (Attorney General)
In Paddy-Cannon v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from findings that "Canada [was] liable to the respondents for breach of fiduciary duty (both sui generis and ad hoc) and for negligence, and granted declaratory relief to that effect".
Here the court considers the evidentiary law of 'collusion':[39] In R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, Nordheimer J.A. explained the analytical difference between “advertent collusion” and “inadvertent collusion”. Advertent collusion is essentially a conspiracy between witnesses that would, if found, necessarily undermine the credibility of those witnesses. Inadvertent tainting, caused by innocent exposure to another’s version of events, on the other hand, does not impact a witness’s credibility; it goes only to the reliability of their account. At para. 32 of C.G., Nordheimer J.A., discussed how the prospect of inadvertent collusion should be assessed by a trial judge:The fact that one witness has heard what another witness will say, or for that matter has even discussed what another person’s recollections were, does not mean that either witness is not telling the truth, or is not giving their independent recollection, or that their evidence has been tainted. Indeed, even where the evidence of one of the parties to the discussion is inadvertently affected by what another person has said, the account of that person may not change. […] The key point is that unlike advertent collusion which corrupts the evidence of all participants, where inadvertent collusion has occurred, a close examination is required to determine what impact that innocent sharing of information may have had on the evidence of each of the witnesses who is a party to that exchange. . R. v. R.I.
In R. v. R.I. (Ont CA, 2024) the Court of Appeal considered the psychological influence on a witness of hearing others discussing the same topic, here termed 'collusion' although it may better be termed as 'unintentional collusion' (or perhaps 'witness social influence'?):[31] In so concluding, the trial judge failed to properly consider whether S.L.’s exposure to the conversations about E.L.’s allegations affected her credibility and reliability. It is well-established that hearing the evidence of other witnesses “can have the effect, whether consciously or unconsciously, of colouring and tailoring [a witness’s] descriptions of the impugned events”: R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at para. 28, citing R. v. C.B. (2003), 2003 CanLII 32894 (ON CA), 167 O.A.C. 264, at para. 40. For this reason, a trial judge faced with evidence of potential collusion must directly address the evidence and consider its impact on the witness’s credibility and reliability. It remains open to the trial judge to rely on the witness’s testimony, but only if the trial judge is demonstrably satisfied that the alleged collusion did not taint the witness’s credibility or reliability: C.G., at paras. 33-40; R. v. Burnie, 2013 ONCA 112, 303 O.A.C. 76, at paras. 36, 41.
[32] We agree with duty counsel that the trial judge in this case did not adequately address the evidence of potential collusion and explain why this factor, together with S.L.’s animus and the various frailties in her evidence, did not leave him with a reasonable doubt. . R. v. Casarsa
In R. v. Casarsa (Ont CA, 2023) the Court of Appeal considered evidentiary 'collusion' - here without citing cases, but the discussion is revealing for the nature of the concept:The Collusion Argument
[4] We see no merit in the collusion argument, even though we recognize that there was an air of reality to the risk of collusion, given that the complainants met together as a result of the assaults before going to the police. The trial judge released a blended decision, in which he first addressed the preliminary issue of the use of evidence cross-counts as similar fact evidence, before turning to the question of whether the Crown ultimately proved Mr. Casarsa’s guilt beyond a reasonable doubt. The trial judge addressed the risk of collusion between the complainants in the similar fact evidence portion of his decision. He found that there was an air of reality to the risk of collusion, but decided that the Crown had proved on the balance of probabilities that collusion had not occurred. On this basis, he found that the two complainants’ allegations had been made independently and not collaboratively, and that their complaints were “truly independent”. Given this finding, and the probative similarities he identified in the assaults, he permitted the cross-count similar fact evidence application.
[5] Before us, Mr. Casarsa argued against the trial judge’s finding that the complaints were “truly independent”, but the trial judge was entitled on the evidence to come to this conclusion. Both complainants testified that they did not discuss the details of the events when they met. The trial judge accepted this testimony. It is not our role to retry this issue as if we had been the trial judge. We must defer to his finding unless it is unreasonable, or it is based on an error of law or principle or a palpable and overriding factual error. We see no such errors.
[6] Given the trial judge’s finding during the similar fact evidence application that the accounts of the complainants were “truly independent”, it is obvious why he did not see the need to mention collusion again, in the same decision, when moving on to determine that the Crown had proved its case. We deny this ground of appeal. . R. v. E.M.M.
In R. v. E.M.M. (Ont CA, 2021) the Court of Appeal defines innocent collusion:[19] Innocent collusion occurs when, through mere conversation, false memories are implanted and overwhelm independent recollection. However, courts must be wary of jumping to the conclusion that that a witness’s evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation. Witnesses may know each other. It is human nature to discuss what happened immediately after offending behaviour takes place: Peter Sankoff, The Law of Witnesses and Evidence in Canada, loose-leaf (Toronto: Thomson Reuters, 2019), at §7.4(c), adopted in R. v. L.(R.G.) (2004), 2004 CanLII 32143 (ON CA), 185 C.C.C. (3d) 55 (Ont. C.A.), at para. 37, per Weiler J.A. (dissenting, but not on this point), appeal quashed, 2005 SCC 18, [2005] 1 S.C.R. 288.
|
