R v AC, 2018 ONCA 333: Collateral Damage - the Collateral Fact Rule and the Premature Objection

You will be relieved to know that the collateral fact rule has “historically suffered from confusion in its application”: R v AC, 2018 ONCA 333 at ¶46. Questioners in the midst of cross-examination are, perhaps, frustratingly familiar with the rule being invoked by earnest opponents. And objectors are, perhaps, understandably keen to call-out any anticipated transgressions of the rule (and interrupt the questioners’ rhythm). This happens even though the rule, strictly speaking, “does not operate to confine the scope of what is otherwise proper cross-examination”: AC, at ¶46.

To be sure, the collateral fact rule - also known as “the rule against rebuttal on collateral issues” - is not one that regulates “whether questions that provoke collateral answers should be permitted”: David M. Paciocco & Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law Inc., 2011), at p. 443; R v Krause, [1986] 2 SCR 466 at ¶17; R v Khanna, 2016 ONCA 39 at ¶9; R v CF, 2017 ONCA 480 at ¶58. But you would be forgiven for thinking otherwise, as “courts frequently cite the collateral fact rule as a basis for refusing to permit collateral questions to be asked during cross-examination”: The Law of Evidence, at p. 443. Properly construed, however, the rule “determines whether a party can call evidence to contradict collateral answers that have been received”: The Law of Evidence, at p. 443.  

Thus, while a questioner generally has wide latitude to test a witness’ credibility even in relation to collateral matters, the collateral fact rule may preclude him or her from “being permitted to lead extrinsic evidence to contradict it”: R v MacIsaac, 2017 ONCA 172 at ¶58; AC, at ¶46, 48 & 50. In other words, the questioner may - by operation of the rule - be “stuck” with the answer given: MacIsaac, at ¶58; Krause, at ¶17. But, to repeat: “the rule does not prevent proper questions from being put in the first place”: MacIsaac, at ¶58 (emphasis added); CF, at ¶59.

What constitutes proper questioning is “broadly construed”: “[c]ounsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value”: R v Lyttle, 2004 SCC 5 at ¶44; R v RV, 2019 SCC 41 at ¶39-40 & 112-125. Indeed, because the right to cross-examine is “the ultimate means” of testing veracity and is “essential component of the right to make a full answer and defence”, it will be “jealously protected”: Lyttle, at ¶41-45.

Be aware, however, that in some cases where a question provokes collateral answers, objections on the basis of the collateral fact rule may be understandable, even if premature or incorrectly framed. This is particularly so where the questioner is exploring whether a complainant has previously made false allegations; the objector may well want to know whether the questioner is in a position to furnish evidence of ‘proven fabrication’: The Law of Evidence, at p. 444; R v Riley, 1992 CanLII 7448 (Ont CA); CF, at ¶59-66. But such evidence would only be necessary if the questioner seeks to contradict the witness’ answer. In other words, the questioner should still be allowed to ask the question (and be stuck with the answer): CF, at ¶59. Subject, of course, to concerns about good faith, relevance, repetition or abuse that may arise with this line of questioning: see R v JH, 2013 ONCA 693 at ¶3; R v SB, 2016 NLCA 20 at ¶36-37, &43 reversed by 2017 SCC 16 on the issue of remedy.

So, the next time your questioning is interrupted on the basis of a collateral fact objection, take a deep breath and attempt to explain the above (unless you disagree with me). But also keep in mind that a trial judges’ discretion to curtail cross-examination and to prevent rebuttal evidence on collateral issues both demand that the probative value outweigh prejudicial effect (or, in the case of defence evidence, the prejudicial effect must substantially outweigh the probative value). However, the prejudicial toll between asking collateral questions and introducing collateral fact is often very different.

The collateral fact rule is concerned with unduly lengthening or complicating proceedings, introducing a confusing sideshow of ancillary issues that have to be resolved, and unfairly surprising witnesses: CF, at ¶58-66; AC, at ¶46; The Law of Evidence, at p. 444. The potential prejudice of rebuttal evidence to trial efficiency is often obvious and substantial: R v. ARB, 1998 CanLII 14603 (Ont. C.A.). Indeed, it is of a different order of magnitude when compared to the modest impact of a non-abusive cross-examination that may - in hindsight - briefly stray beyond relevance or may be somewhat repetitious. In other words, questioners should be generally given “wide freedom” to ask questions - even on collateral matters - because the probative value (which may only be revealed as the cross-examination unfolds) is unlikely to be (substantially) outweighed by the prejudicial effect: See: Krause, at ¶17; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 SCR 901 at p. 924 per Cory J in dissent but not on this issue (“The question of relevance, however, should not as a general rule be determined in advance” and “[o]ften the importance and significance of a cross-examination will only be revealed as it unfolds.”).

AC provides a good example of a court ‘prematurely’ (and incorrectly) citing the collateral fact rule as a basis for refusing to permit questions to be asked during cross-examination: AC, at ¶47. In that case, the theory of the prosecution was that AC controlled his then-spouse and his step daughters (including, SD#1 and SD#2) with aggression and abuse from the beginning of their cohabitation in 1998, and that they lived in fear of him. Yet, there was evidence that, in 2002, AC won a “Father of the Year Award” based on letters that the family had written and sent in to a local newspaper. At trial, SD#1 - who had alleged that AC had sexually assault her on a regular basis - denied participating in writing any letters in support of this award. AC then sought to question the remaining Crown witnesses (i.e. his then-spouse and SD#2) about the “Father of the Year” award, as both testified at the preliminary inquiry that SC#1 had, in fact, participated. The trial judge precluded AC from questioning these witnesses about SD#1’s involvement in writing the letters.

Writing for the Court, Hourigan J.A. observed that this line of questioning was obviously probative: “Not only” would it be relevant to SD#1’s credibility on that specific issue, but it had the potential to undermine “the picture painted by the Crown witnesses that the appellant ran an abusive household from the outset”: AC, at ¶49-50. Moreover, AC was “not seeking to call independent evidence to contradict” SD#1 but to simply ask the remaining Crown witnesses about this subject in cross-examination: AC, at ¶47. Had these Crown witnesses testified in accordance with their preliminary inquiry testimony, “that presumably would have been the end of it.” If not, AC “would have been entitled to impeach them on the basis of their preliminary inquiry testimony in the normal course of cross-examination.” Importantly, “[t]he collateral fact rule would only have arisen had the defence sought to introduce independent extrinsic evidence to contradict [SD#1’s] assertion that she did not participate”, by, for example, calling the newspaper reporter who wrote the “Father of the Year” article: AC, at ¶47.

Justice Hourigan went on to note that even if the collateral fact rule did apply at this stage, it would not have prevented AC from asking the remaining Crown witnesses about SD#1’s involvement in writing the letters. This is because the proposed questions went beyond solely SD#1’s credibility and challenged the view that AC controlled the family with aggression and abuse from the outset: AC, at ¶50, 40 & 45. Moreover, and while not specifically addressed in AC, it can hardly be said that the proposed questioning would cause the mischief that the collateral fact rule is supposed to prevent - it would not unduly lengthen or complicate the proceedings, it did not introduce a sideshow of ancillary issues that had to be resolved, and the witnesses would not be unfairly surprised by the cross-examination: see CF, at ¶65.

It is also worthwhile to note that an effort is a foot to move the collateral fact rule – like with hearsay (R v Khan, [1990] 2 SCR 531), similar fact evidence (Sweitzer v The Queen, [1982] 1 SCR 949), and prior consistent statements (R v Khan, 2017 ONCA 114 at ¶58) – towards a more flexible approach rooted in principle and the policy rather than categorical exceptions (see, for example, R v MC, 2012 ONSC 882 at ¶15 for a ‘textbook’ lists of exceptions to the rule). For example, the traditional rule generally views the credibility of a witness as collateral and seeks to bar the party from calling extrinsic contradictory evidence that bears solely on a witness’ credibility: MacIsaac, at ¶59; AC, at ¶48 & 50. However, “if credibility is central to the case against an accused”, some courts suggest that the collateral fact rule may be applied less strictly: CF, at ¶60, although see, in contrast, ARB.

The move towards a principled approach has some impressive sponsors, notably David Paciocco, both as judge (in obiter) and as academic: see R v Kiss, 2018 ONCA 184 at ¶67 or the Law of Evidence, pp. 442-444, where he and his co-author note that “the key question ought to be: Is the evidence offered of sufficient value and of sufficient importance to the issues before the court that we ought to hear it having regard to the necessary court time required, the potential confusion of issues, and any unfairness and prejudice to the witness?” and that “[c]ontradiction should be allowed where probative value and the nature of the contradictory evidence is such that it is not outweighed by the counterbalancing policy concerns…”

This approach, however, has its detractors, with some worried that it would discourage complainants from coming forward on fear “that defence counsel will hang out all the dirty laundry of their past in a general assault on their character”: SB, at ¶23. In SB, Justice Rowe (as he then was), adopted the more “rigid” conception of the rule, while also offering up this pithy conclusion: “[v]iewed properly, the collateral fact rule is a particular application of the general rule that evidence should be relevant.  By definition, what is collateral is not relevant and what is relevant is not collateral”: SB, at ¶21, 16 & 11; Kiss, at ¶67. Contrast this with the view expressed in the Law of Evidence, pp. 440-441:

Evidence that goes to prove contradiction has some probative value in that it may make it more probable that the witness is not telling the truth or is not accurate about the facts in issue. Therefore, the rule is not based on lack of relevancy or probative value. Rather, the rule is based on policy considerations. Primarily, it is a rule of trial efficiency… (emphasis added).

What’s more is that SB seems to miss the singular point that a proper assessment of probative value and prejudicial effect - far from being “difficult for a judge to administer” (¶23), itself an unconvincing suggestion, would work just fine in screening out ‘dirty laundry’ tactics. To be sure, while trial counsel in SB ultimately engaged in an abusive cross-examination, his initial questioning on collateral matters of credibility was proper and relevant; this is because proving contradiction has some probative value: SB, at ¶36-37, & 43. Indeed, incongruously, Justice Rowe later said so himself (confirming that, in any event, the rule does not prevent collateral questions from being put in the first place): SB, at ¶36-37.