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Evidence - Error of Either-Or Admission of Competing Evidence

. R. v. C.H.

In R. v. C.H. (Ont CA, 2023) the Court of Appeal considers, and distinguishes, an argument that the trial judge committed the 'either/or' contesting evidence error:
[20] I do not accept C.H.’s contention that the trial judge engaged in inappropriate “either/or” reasoning, contrary to the bar on treating fact finding as a “contest of credibility”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 at para. 23. It is not an error for a trial judge to contrast competing versions of events when evaluating opposing testimony, so long as they do not accept the inculpatory version because they prefer it to the exculpatory version. Although the trial judge did, at times, compare competing evidence, there is no basis for concluding that he accepted the complainant’s evidence simply because he preferred it to C.H.’s evidence.
. R. v. A.I.B.

In R. v. A.I.B. (Ont CA, 2023) the Court of Appeal considered the conclusory 'either/or' evidence error:
[15] Finally, the appellant argues that the trial judge committed the same analytical error identified by the Saskatchewan Court of Appeal in R. v. Van Deventer, 2021 SKCA 163, 407 C.C.C. (3d) 291. We are not persuaded that she did.

[16] In Van Deventer, the trial judge accepted the complainant’s evidence as she was both credible and reliable. The trial judge then continued: “The necessary corollary of this conclusion is that I do not believe and I reject [the accused’s] denial”: at para. 10 (emphasis added). The Saskatchewan Court of Appeal held, at para. 15, that “the trial judge’s statement that she must reject and disbelieve [the accused’s] testimony as a necessary corollary of finding [the complainant] to be credible and reliable, combined with no other analysis of his credibility, represents an error that necessitates a new trial.”

[17] While the Saskatchewan Court of Appeal held that it would be a legal error for a trial judge to make an automatic finding of a lack of credibility for an accused once the testimony of a complainant is found to be credible and reliable, that court emphasized, at para. 25, that:
A finding of credibility and reliability regarding a complainant’s testimony about the alleged conduct can be the reason for rejecting the testimony of an accused, when considered in the context of the entirety of the evidence. As long as a trial judge is mindful of the burden of proof and the principles from W.(D.), they can reject the accused’s evidence on the basis that the complainant’s evidence is accepted to the extent that it leaves no room for reasonable doubt. [Emphasis added.]
. R. v. J.W.

In R. v. J.W. (Ont CA, 2023) the Court of Appeal describes what I call an 'either/or' evidentiary error:
[24] It is well-established that a trier of fact may not use the disbelief of an accused person’s evidence as capable of supporting an inference of guilt, unless there is independent evidence of fabrication to avoid culpability: R. v. Iqbal, 2021 ONCA 416, at paras 52-58.
. Quantum Dealer Financial Corporation v. Toronto Fine Cars and Leasing Inc.

In Quantum Dealer Financial Corporation v. Toronto Fine Cars and Leasing Inc. (Ont CA, 2023) the Court of Appeal made the point that failure to accept one party's evidence does not mean, by itself, that the other party's evidence should be automatically accepted:
[45] In my view, the motion judge drew unwarranted inferences supporting liability (i.e., knowledge of and participation in Diego’s wrongdoing) based on his mere rejection of their evidence. ...


(3) Rejection of Evidence and Proof of Liability

[56] The appellants’ main submission is that there was no direct evidence before the motion judge to prove that they were in receipt of the funds misappropriated by Diego, or that any of them were aware of his dishonest dealings with the respondents. The motion judge erred by improperly drawing inferences of liability based largely on the rejection of the appellants’ evidence. I accept the appellants’ submission.

[57] In Waxman v. Waxman, (2004) 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.) leave to appeal refused [2004] S.C.C.A. No. 291, the court stated the following evidentiary principle: “Evidence that is rejected by the trier of fact has no evidentiary value and cannot be used as a basis for findings of fact”: at para. 351.

[58] In Haynes v. Haynes, 2017 BCCA 131, 97 B.C.L.R. (5th) 63, Newbury J.A. explained the application of this principle, at para. 20:
The fact the trial judge disbelieved the defendant did not create positive evidence that the defendant had failed to inspect the trailer or had loaded it improperly. As Gibbs J. (as he then was) pointed out in Steinberg v. Commissioner of Taxation (Commonwealth) (1975) 134 C.L.R. 640 (Aust. H.C.), "The fact that a witness is disbelieved does not prove the opposite of what he asserted". (At 695). Similarly, Scrutton L.J. had observed in Hobbs v. Tinling and Co.; Hobbs v. Nottingham Journal Ltd. [1929] 2 K.B. 1 (C.A.):
The defendants would ... be entitled to cross-examine on such facts to prove that the witness was not a credible person, and to employ that proof of unreliability to the evidence he had given in chief. But by destroying that evidence you do not prove its opposite. If by cross-examination to credit you prove that a man's oath cannot be relied on, and he has sworn that he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject. [At p. 21.]
Both Steinberg and Hobbs were cited with approval by this court in R. v. Tessier (1997) 1997 CanLII 3475 (BC CA), 113 C.C.C. (3d) 538 at 553; see also Walton v. Alberta (Securities Commission) 2014 ABCA 273, lve to app. dism'd. [2014] S.C.C.A. No. 476, where the Court stated that "[i]t is an error for a tribunal to turn disbelief of a particular witness into positive proof of the opposite proposition." (At para. 36.) Citing R. v. O'Connor (2002) 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), the Court in Walton added that while a witness's evidence on a particular point may be disbelieved, some positive evidence is needed to prove the contrary. [Emphasis added.]
See also Malak v. Hanna, 2019 BCCA 106, at para. 113. These principles apply to this case.


[68] To conclude on this issue, the motion judge’s conclusions on liability rely on the mere rejection of the appellants’ evidence, Claudia’s in particular. There was no attempt to take the next step to determine whether independent evidence could support the conclusion that the rejected evidence was fabricated or concocted for the purpose of avoiding liability.


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Last modified: 29-09-23
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