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Evidence - 'Inadvertent Tainting'. R. v. T.L.
In R. v. T.L. (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, this brought against convictions for "two counts of sexually assaulting the complainants".
The court considered the evidentiary issue of 'inadvertent tainting', here in a 'similar fact' context:[18] ... the entire similar fact evidence application was dismissed over concerns about inadvertent tainting as between C.E, S.S. and N.D. In other words, the Crown had failed to meet its onus of establishing on a balance of probabilities that there had been no inadvertent tainting of the complainants’ evidence.
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C. Positions of the Parties
[22] The appellant submits that the evidence of inadvertent tainting needed to be addressed in the trial judge’s assessment of C.E. and S.S.’s credibility and reliability.
[23] The respondent submits that the trial judge considered and rejected the issue of tainting and collusion with respect to the evidence of C.E. and S.S. and that his ultimate findings of fact are therefore not at odds with his earlier findings on the similar fact evidence application regarding the possibility of tainting. In any event, the trial judge characterized the likelihood of tainting as “improbable”. Although the trial judge determined, on the similar fact evidence application, that the Crown had failed to discharge its burden of disproving tainting, it remained open to the trial judge to accept the evidence of C.E. and S.S. on the trial proper. The respondent relies on this court’s decision in R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5 for this proposition.
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D. Analysis
[25] I agree with the appellant: the trial judge erred by failing to properly resolve the issue of tainting, inadvertent or otherwise, of C.E. and S.S.’s evidence.
[26] On the similar fact evidence application, the trial judge concluded that the prospect of tainting had not been displaced by the Crown, and the application was dismissed on that basis. However, on the trial proper, he declined to provide any explanation as to why his concerns over tainting, however remote they may have been, on the similar fact evidence application, did not give rise to similar concerns in the context of the trial proper. Instead, the trial judge simply said, in the context of his reasons for judgment, that there was “no evidence of collusion or tainting of evidence as between CE and SS” (emphasis added). While it may be that the trial judge had resolved his earlier concerns, expressed in the context of his similar fact evidence ruling that there had been possible inadvertent tainting between all of C.E., S.S. and N.D., he needed to explain why that was so. If concerns over possible tainting were enough to dismiss the similar fact evidence application, it was incumbent on the trial judge to explain why those same concerns did not adversely impact his credibility and reliability findings when it came to C.E. and S.S.
[27] While N.D.’s evidence could not be used on the trial proper as similar fact evidence, the parties acknowledged in their closing submissions that N.D.’s evidence was important to resolving credibility and reliability issues on the trial proper. In this context, it was important that the trial judge address why he had no concerns about tainting, including why he had no concerns about N.D. tainting the evidence of C.E. and S.S.
[28] The trial judge’s failure to explain how he resolved, for the purposes of the trial proper, the concerns he had about tainting in the context of his admissibility analysis, constitutes a reversible error of law: R. v. Burnie, 2013 ONCA 112, 294 C.C.C. (3d) 387, at para. 41; R. v. J.F. (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1, at para. 88 (Ont. C.A.). As this court noted in R. v. R.I., 2024 ONCA 185, 97 C.R. (7th) 169, at para. 31, a trial judge cannot ignore evidence of possible tainting in their assessment of 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. [29] O.M. does not assist the respondent. In O.M., the trial judge dismissed a similar fact evidence application on the basis that the Crown had failed, at the time of the application, to disprove collusion. Later, on the trial proper and after considering the evidence as a whole, the trial judge found there to be no collusion and convicted the appellant. This court upheld the convictions. Clearly, in O.M., there was consideration of the possibility of collusion in the assessment of the witnesses’ credibility and reliability. The trial judge in O.M. addressed the possibility “head on”, rejecting that it impacted the credibility and reliability of the witnesses and explaining why he came to that conclusion. Here, there was no explanation as to why the trial judge found “no evidence of collusion or tainting” for purposes of the trial proper. As long as there is an air of reality to the possibility of tainting, which the trial judge’s evidentiary ruling demonstrates was the case, it is necessary to explain why that possibility did not adversely impact the complainants’ credibility and reliability. . R v B.H.
In R v B.H. (Ont CA, 2022) the Court of Appeal made a point about 'inadvertent tainting':[19] Second, we see no air of reality to the appellant’s argument that there is a risk that R.H.’s evidence was inadvertently tainted or coloured by the disclosure conversation or any other discussion with A.H. In her evidence, R.H. alleged multiple incidents of intrusive sexual abuse going well beyond that which A.H. alleged occurred in the single incident to which she testified. We see no realistic possibility that R.H.’s allegations were somehow inadvertently tainted by her discussions with A.H. R.H.’s allegations were of a much more intrusive and persistent character than A.H.’s allegation. As Hoy J.A. said in R. v. E.M.M., 2021 ONCA 436, at para. 19, “courts must be wary of jumping to the conclusion that a witness’s evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation.” . R. v. Ricchio
In R. v. Ricchio (Ont CA, 2022) the Court of Appeal considered an evidentiary issue of 'inadvertent tainting':[21] Inadvertent tainting occurs where a witness’ testimony is influenced by hearing evidence from other witnesses. However, the fact that one witness has heard what another witness will say, or has discussed what another person’s recollections were, does not mean that either witness is not telling the truth 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 other person may not change: R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at para. 32.
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