Tuesday, July 22, 2014

Demeanour Evidence

R. v. Hubrich, 2004 CanLII 11370:

[22]        The appellant argued that the admission of post-arrestdemeanour evidence is per seimproper.  Mr. Coughlan relied in particular upon R. v. Sodhi (2003), 66 O.R. (3d) 640 (C.A.) at 662-4; R. v. Levert 2001 CanLII 8606 (ON CA), (2001), 159 C.C.C. (3d) 71 (Ont. C.A.) at 80-2; R. v. Baltrusaitis 2002 CanLII 36440 (ON CA), (2002), 162 C.C.C. (3d) 539 (Ont. C.A.) at 560-2;R. v. Bennett[2003] O.J. No. 3810 (C.A.) at para. 120-123, 143-5, 147;The Report of The Commission on Proceedings Involving Guy Paul Morin (1998), vol. 2, pages 1142-50.

[23]        In R. v. Levert, supra, a prosecution witness who was permitted at trial to express an opinion as to the accused's reaction when confronted with the complainant's allegations of sexual misconduct testified that he appeared "very, very calm" and "not on the defensive at all".  At page 81, on the subject of demeanourevidence, Rosenberg J.A. observed:

                        The probative value of this type of evidence is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accused'sdemeanour was found to have played a part in the wrongful prosecution. The Report of The Commission on Proceedings Involving Guy Paul Morin, 1998, vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanourevidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based ondemeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.



[24]        Other authorities too express the need for caution in reliance ondemeanour evidence:  R. v. Valentini et al. 1999 CanLII 1885 (ON CA), (1999), 132 C.C.C. (3d) 262 (Ont. C.A.) at 283-5; R. v. Clark[2004] O.J. No. 195 (C.A.) at para. 58-71.

[25]        The authorities, for the most part, view with suspicion "perceptions of guilt based ondemeanour" – a subjective interpretive process which can easily misassign meaning, often guilty responsibility, to equivocal conduct.  This is the classic overreach of much after-the-fact conduct proffered in criminal trials.

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