R. v. T.W.S., 2018 BCCA 119

La Cour d’appel de la Colombie-Britannique rappelle qu’il est toujours loisible pour un juge d’accepter un témoignage en l’absence de preuve confirmative. Toutefois, quand un juge base sa décision d’accorder de la crédibilité à un témoin sur le fait qu’il y a présence d’une preuve confirmative, il commet une erreur si cette preuve ne répond pas à la définition d’une preuve confirmative :

[37]        I take the trial judge to have used the expression “corroborating evidence” to mean the type of evidence referred to by Justice K. Smith in R. v. Aksidan, 2006 BCCA 258 (CanLII) at para. 44, 209 C.C.C. (3d) 423, when he said:

[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…

[38]        Also pertinent is the following from the judgment of Justice Cromwell, then of the Nova Scotia Court of Appeal, in R. v. Dowe, 2007 NSCA 128(CanLII) at para. 40, 228 C.C.C. (3d) 75, aff’d 2008 SCC 55 (CanLII), [2008] 3 S.C.R. 109:

To be capable in law of constituting corroboration, the evidence must simply be independent evidence which is “… capable of restoring the trier’s faith in the relevant aspects of the witness’ account”:  R. v. Kehler, [2004] 1 S.C.R. 328, 2004 SCC 11 (CanLII) at para. 12.  Whether the evidence actually has that effect is for the trier of fact.

[39]        In my view, none of the evidence the trial judge treated as corroborative could properly be considered as such.  This is not to say a trier of fact cannot consider the level of detail a witness is able to provide as enhancing that witness’s credibility.  This, however, is not equivalent to treating that detail as corroborative or confirmatory.

De plus, une description détaillée d’un lieu faite par un témoin est un fait neutre et non une preuve confirmative,  lorsque le lieu décrit est un lieu qui a été fréquenté à multiples reprises par le témoin : 

[40]        Mr. S.’s description of the living room furniture was consistent with that given by A.S.  However, in order for Mr. S.’s evidence to be treated as confirmatory with respect to what occurred in the living room, A.S.’s description of the furniture had to be more consistent with her version of events than with another version:  R. v. Malik, 2013 BCCA 265 (CanLII) at para. 59, 339 B.C.A.C. 76; R. v. R.J.C., 2014 BCCA 184 (CanLII) at para. 35, 335 B.C.A.C. 314.  Given that A.S. lived in the house for several years, that she was able to accurately describe the furniture in the living room is a neutral fact.

[41]        Although the trial judge stated A.S. described the “details of Mr. S.’s clothing”, A.S. did no more than testify Mr. S. was wearing boxer shorts under his pants the day of the living room incident.  There was no other evidence that Mr. S. wore boxer shorts.  Accordingly, nothing confirms this aspect of A.S.’s evidence; she cannot be her own corroborator.  In addition, given that A.S. lived in the house, she was likely to have seen the style of underwear worn by other members of the household, at least in the laundry, if not otherwise.

[42]        The only evidence as to how the living room incident unfolded came from A.S.  Although the fact A.S. provided a detailed description of what occurred was a factor to be considered in assessing her testimony, her evidence could not be treated as confirmatory of itself.

[43]        Last, that A.S. accurately described the surface of The Island was a neutral fact given the trial judge’s finding that A.S. had been there on other occasions.  In addition, the judge was in error when she said A.S.’s evidence that The Island had no standing trees and only washed up logs was consistent with that given by both Mr. S. and N.S. that trees would from time to time wash up on The Island “or any other outcropping” in the river.

[44]        Both A.S. and Mr. S. testified there were no trees on The Island, only washed up logs.  N.S., however, did not give evidence regarding trees or washed-up logs on The Island.  When asked if there were trees and plants on The Island, N.S. replied, “It’s just a big rock.”  Further, although Mr. S. said there were hundreds of “pieces of land” in the river, including one like The Island some distance away, neither he nor N.S. testified that logs washed up at those locations.  Indeed, there is a dearth of evidence with respect to the outcroppings referred to by the trial judge.

[45]        Although it was open to the trial judge to accept A.S.’s testimony in the absence of confirmatory evidence, it is clear the judge based her decision, in part, on what she erroneously considered confirmatory evidence.  As the verdict would not necessarily have been the same had this error not occurred, there must be a new trial.