



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

486.4(1)         Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       any of
    the following offences;

(i)         an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)        any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)       REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)       two or
    more offences being dealt with in the same proceeding, at least one of which is
    an offence referred to in paragraph (a).

(2)       In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)       at the
    first reasonable opportunity, inform any witness under the age of eighteen
    years and the victim of the right to make an application for the order; and

(b)       on
    application made by the victim, the prosecutor or any such witness, make the
    order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings
    in respect of an offence other than an offence referred to in subsection (1),
    if the victim is under the age of 18 years, the presiding judge or justice
    shall

(a) as soon as
    feasible, inform the victim of their right to make an application for the
    order; and

(b) on application
    of the victim or the prosecutor, make the order.

(3)       In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)       An order
    made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)         Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)       For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Santhosh, 2016 ONCA 731

DATE: 20161006

DOCKET: C58666

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Renjit Santhosh

Appellant

Anthony Moustacalis, for the appellant

Rochelle Direnfeld, for the respondent

Heard: May 6, 2016

On appeal from the judgment of Justice Kenneth L. Campbell,
    sitting as a Summary Conviction Appeal Court, dated March 21, 2014, with
    reasons reported at 2014 ONSC 1802, upholding the conviction entered on April
    3, 2012, by Justice F. Bhabha of the Ontario Court of Justice.

Juriansz J.A.:

Background in Brief

[1]

The
    appellant was charged with sexual assault arising from an incident with a 52-year
    old female patient at a physiotherapy clinic in Toronto where the appellant
    worked as a physiotherapy assistant. The patient claimed that, near the end of
    a treatment with the appellant in a private cubicle, the appellant touched the
    middle of her chest, moved her t-shirt aside with his hand and, motioning to her
    with his finger to his lips to be quiet, reached inside her bra and touched her
    nipple and one of her breasts.

[2]

The
    appellant, 35 years old at the time of the trial, testified and denied any
    sexual contact with the complainant. He stated that, both on the day in
    question and during earlier treatment sessions, the complainant made sexually
    suggestive remarks and acted in a sexually provocative manner toward him. According
    to the appellant, on the day of the alleged assault, the complainant lowered
    her halter top and exposed her bra-covered breasts to him, while moving her
    eyes in a sexually suggestive or provocative manner, and said Im a bad girl.
    The appellant maintained that he ignored the incident, which he said lasted
    about 10 seconds, and carried on to complete the complainants treatment.

[3]

There
    was also evidence at trial that, some hours after the complainant had left the
    clinic on the day of the incident, the appellant told his supervisor that the
    complainant had exposed her breasts to him and said that she was a dirty girl
    or words to that effect. The appellants report of the incident was noted in
    the complainants chart.

[4]

The
    trial judge rejected the appellants testimony, finding that it was
    contrived, appeared to be well-rehearsed and made very little sense in
    several respects. She accepted the clinic owners evidence that the appellant reported
    the incident but held that the appellants disclosure was a pre-emptive
    reporting and an exercise in self-preservation, designed to control any
    potential damage in the event of a complaint against him. In contrast, the
    trial judge found that the complainants credibility was strong, that her
    testimony lacked guile or contrivance, and that the core of her account of the
    incident was consistent and believable. Accordingly, she convicted the
    appellant of one count of sexual assault. He received a 90-day conditional
    sentence, plus 12 months probation.

[5]

His
    appeal from his conviction was rejected by the Summary Conviction Appeal Court
    judge (the SCAC judge).

[6]

The
    appellant now seeks leave to appeal to this court. He argues that the SCAC judge
    erred in law by concluding the trial judge did not err by considering the complainants
    attire in court and her apparent religious beliefs as relevant factors in
    assessing her credibility.

Leave to Appeal

[7]

The
    test for leave to appeal to this court from the decision of a Summary Conviction
    Appeal Court under s. 839 of the
Criminal Code
, R.S.C. 1985, c. C-46,
    is well-established. To obtain leave, the applicant must demonstrate that the
    question sought to be raised on appeal is a question of law alone and that it
    either: i) has significance to the administration of justice beyond the
    particular case, even if the merits of the proposed appeal are not particularly
    strong; or ii) the merits of the proposed appeal appear to be very strong, even
    if the matters in issue have no general importance beyond the particular case:
R.
    v. R. (R.)
, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37.

[8]

I
    am satisfied that the test for leave to appeal to this court has been met. The
    appellants proposed grounds of appeal involve questions of law alone
    concerning the trial judges assessment of the complainants credibility and
    reliability. As this court held in
R. v. M. (A.)
, 2014 ONCA 769, 123
    O.R. (2d) 536, at para. 19, a legal error made in the assessment of
    credibility may displace the deference usually afforded to a trial judges
    credibility assessment and may require appellate intervention. For a trial
    judge to rely on irrelevant factors to bolster a witness credibility is such
    an error. Further, in my opinion, although the merits of the appellants proposed
    appeal are not strong, the questions sought to be raised by him on appeal have significance
    to the administration of justice beyond the four corners of this case. I would
    therefore grant leave.

Issues

[9]

The
    appellant submits that the trial judge erred in her assessment of the
    complainants credibility by taking account of extraneous or irrelevant
    factors. Specifically, he argues that the trial judge erred by treating, as
    factors bolstering her credibility, the complainants manner of dress in court
    and her apparent religious beliefs. The SCAC judge erred, the appellant says, by
    holding that it was open to the trial judge to consider these factors in
    evaluating the complainants credibility.

Analysis

(1)

Complainants Appearance and Demeanour

[10]

I turn first to
    the trial judges comments about the complainants appearance and demeanour in
    court, including her manner of in-court attire.

(a)

Parties Positions

[11]

The appellant
    argues that the trial judge erred by relying on the complainants in-court
    dress as a factor enhancing her credibility. He further submits that, given
    this error by the trial judge, the SCAC judge erred by holding that the trial
    judges analysis of the complainants credibility was not tainted by reversible
    error.

[12]

The Crown, on
    the other hand, argues that the SCAC judge correctly concluded that the trial
    judge did not place undue emphasis on the complainants courtroom appearance
    and demeanour in assessing her credibility. The manner of the complainants
    dress in court was only a minor element of the trial judges credibility
    analysis and, essentially, was of no moment. In any event, the Crown submits, the
    appellants version of events at trial  that the complainant was the sexual
    aggressor and acted in a provocative manner toward him  entitled the trial
    judge to take account of the complainants in-court dress.

(b)

Discussion

[13]

In her analysis
    of the complainants credibility and reliability, the trial judge stated:

I have considered [the complainants] evidence very carefully. [The
    complainant] is a very diminutive person. She presented as very fragile .

.

I will again repeat that [the complainant] appeared to be
    someone who does not have a very forceful personality.
Certainly, her manner
    of dressing in court; again, this is something I have to take with a huge grain
    of salt, she did not present as someone who was provocative
[Emphasis
    added.]

[14]

The SCAC judge
    considered the appellants complaint regarding the trial judges reference to
    the complainants manner of dress in court. He held, at paras. 22 and 23 of his
    reasons, that the complainants demure dress in court was a factor, albeit
    [a] small factor, among others, that the trial judge was entitled to take into
    account as contributing to the complainants overall credibility.

[15]

With respect, I
    disagree. To the extent that the trial judge treated the complainants manner
    of dress in court as a relevant consideration bearing on the complainants
    credibility, she erred in law. It follows that, in failing to so hold, the SCAC
    judge also erred.

[16]

The manner of a
    witness appearance in court is irrelevant to assessing the witness creditworthiness.
    This court has held that how a witness dresses in court is no indicator of his
    or her credibility:
R. v. Minuskin
(2003), 68 O.R. (3d) 577, at para.
    31. The conservative nature of a witness in-court apparel, like flamboyant or
    provocative in-court dress by a witness, offers no assurance of the veracity of
    the witness testimony. Both are immaterial to the creditworthiness of the
    witness testimony.

[17]

There is no
    principled basis on which to conclude that a complainant in a sexual assault
    case who is modestly or demurely dressed in court is more likely to tell the
    truth than a complainant who is provocatively dressed. To conclude otherwise runs
    the risk of engaging in prohibited stereotypical reasoning. See, by analogy,
R.
    v. Ewanchuk
, [1999] 1 S.C.R. 330, at paras. 82, 88-89,
per
LHeureux-Dubé J., concurring. A complainants manner of dress in a sexual
    assault case simply has no probative value in assessing the truthfulness and
    reliability of his or her testimony.

[18]

That said, it is
    also my opinion that the trial judges error in this case  treating the
    complainants manner of dress in court as a relevant factor in her assessment
    of the complainants credibility  falls short of justifying appellate
    intervention.

[19]

The trial judges
    reasons confirm that she appreciated that a witness demeanour, while relevant
    to the assessment of credibility, is not determinative of the witness credibility
    and must not be overemphasized. The trial judges reasons considered as a whole
    reveal that the complainants in-court appearance and demeanour, including the
    complainants manner of dress, did not form a material part of her reasoning
    regarding the complainants credibility.

[20]

I see no reason
    to interfere with the SCAC judges conclusion, stated at para. 23 of his
    reasons, that the trial judge was careful to place significantly reduced
    emphasis upon the courtroom demeanour of the complainant, properly focusing her
    attention on the substantive details of the complainants testimony (citations
    omitted).

[21]

Given the
    minimal weight accorded to this factor by the trial judge, I am not persuaded
    that the trial judges references to the complainants in-court appearance and demeanour,
    including her manner of dress, caused any substantial wrong or miscarriage of
    justice.

(2)

Complainants Apparent Religious Beliefs

[22]

I reach a
    similar conclusion regarding the trial judges mention of the complainants
    apparent religious beliefs. Though I do not agree with the SCAC judges
    statement of the law, I would not interfere with the result given his
    conclusion the trial judge placed minimal weight on the complainants apparent
    religious beliefs.

[23]

At trial, the
    complainant testified that, after the assault by the appellant, she stayed in
    the room for a while, praying and wondering why this was happening to her. The
    trial judge noted this evidence in her reasons and went on to state:

I have considered [the complainants] evidence very carefully. [The
    complainant] is a very diminutive person. She presented as very fragile, and it
    was clear from her evidence that she is, A God-fearing type of person. She
    referred to prayer, and on more than one occasion indicated, As God is my
    witness. That does not necessarily mean that she is someone whose evidence the
    Court should accept without reservation, but certainly I find that this is part
    of who she was.

[24]

The appellant
    challenged these comments by the trial judge before the SCAC judge, arguing
    that they indicated that the trial judge improperly relied on the complainants
    apparent religious beliefs to bolster the complainants credibility.

[25]

The SCAC judge accepted
    that the complainants apparent religious beliefs were a small factor in the
    trial judges analysis and concluded they were a factor the trial judge was
    entitled to consider in assessing the overall credibility of the complainant. He
    stated:

[24]    It is important to appreciate that the comments of the
    trial judge as to the God-fearing personality of the complainant were based,
    quite accurately, upon aspects of the complainants testimony. As I have
    already indicated, the complainant did, in fact, testify that after she had
    been sexually assaulted, she remained in the treatment cubicle praying for
    about five minutes, asking Lord, help me  I dont know what to do, Im so
    scared  why did this happen to me? Further, at some points in her sworn
    testimony the complainant did, in fact, expressly draw upon her belief that God
    was a witness to the truth of her evidence. For example, in cross-examination,
    when defence counsel suggested that the appellant had never touched her bra or
    her breast in any way, the complainant responded: He did, God is my witness
    and Im telling the truth.

[25]    As a matter of principle, if the evidence reveals
    that a witnesss sworn oath has a greater hold over their conscience  and, in
    turn, the truthfulness of their testimony  as a result of their genuinely held
    religious beliefs, I do not see why that aspect of the evidence must be ignored
    by a trier of fact in assessing the credibility of the witness
.
Moreover, I am aware of no authority that would require a trier of fact to
    ignore such evidence. Indeed, as I understand them, the available authorities
    suggest that, in appropriate and limited circumstances, this kind of evidence
    may properly be weighed as one of the myriad of factors to be taken into
    account in assessing the credibility of a witness.

.

[28]    Accordingly, it seems to me that where, as in the
    present case, the evidence reveals that one of the witnesses has a personal
    religious commitment that might add some special additional security in
    support of the credibility of the witness, the trial judge is not obliged to
    wholly ignore that religious commitment in assessing the credibility and the
    reliability of the testimony of that witness
.

[Citations
    omitted; emphasis added.]

(a)

Parties Positions

[26]

Before this
    court, the appellant renews his argument that the trial judge erred by relying
    on the complainants apparent religious beliefs to buttress the complainants
    credibility.

[27]

The appellant
    argues that the SCAC judge compounded the trial judges error by holding that a
    witness personal religious commitment may add some special additional
    security in support of his or her oath and, hence, credibility. The appellant
    submits that should a witness testify about his or her religious beliefs, this
    evidence cannot enhance the value of the witness oath or render the witness
    more credible by reason of those beliefs. An inquiry into the genuineness of a
    witness oath may be conducted only in limited circumstances to avoid a fraud
    on the court. In concluding to the contrary, the appellant says, the SCAC judge
    erred by misapprehending and misapplying the governing authorities, in
    particular, this courts decisions in
Minuskin
and
R. v. Wiebe
(2006),
    207 O.A.C. 209.

[28]

The Crown argues
    that the trial judge did not err in her analysis of the complainants evidence.
    It maintains that, by noting that the complainant was a God-fearing type of
    person, the trial judge was simply making an observation about the
    complainants character that was inconsistent with the appellants depiction of
    the complainant and her conduct. Further, the complainants apparent religious
    beliefs were an insignificant factor in the trial judges overall assessment of
    the complainants credibility.

[29]

Similarly, the
    Crown contends that the SCAC judge did not err in his consideration of this
    issue. The Crown submits that the SCAC judges impugned comments were not
    intended to convey that a religious witness is more credible than a
    non-religious witness. Rather, in stating that a witness religious commitment
    might provide special additional security in support of his or her
    credibility, the SCAC judge was alluding to the history of the common law and
    the oath. The Crown says that the SCAC judge was correct to hold that evidence
    that a witness particular religious beliefs cause the witness to attach
    special significance to the importance of being truthful in statements made
    under sworn oath is a relevant and proper consideration in assessing the
    witness credibility.

(b)

Discussion

[30]

I agree with the
    SCAC judges conclusion that the complainants apparent religious beliefs were
    a small factor in the trial judges analysis. However, for two reasons, I do
    not agree with his conclusion it was a factor she was entitled to take into
    account in assessing the complainants credibility.

[31]

First, although
the Crown did not elicit the complainants testimony
from
    which the trial judge inferred she was a God-fearing type of person for any
    oath-helping purpose,
it is useful to examine the trial
    judges use of that testimony from an oath-helping perspective. Her use of it for
    credibility purposes was in the nature of impermissible oath-helping.

[32]

Second, setting
    aside any oath-helping concerns, reliance on evidence of the complainants
    religiosity for credibility purposes would nevertheless be improper. I do not
    agree with the SCAC judges conclusion that a trial judge is entitled to
    consider evidence
that reveals that one of the witnesses has a personal
    religious commitment that might add some special additional security in
    support of the credibility of the witness.

(i)

The Rule Against Oath-Helping

[33]

The rule against
    oath-helping bars parties in most circumstances from introducing evidence
    solely to support a witnesss credibility. In

R. v. B. (F.F.)
,
    [1993] 1 S.C.R. 697, at p. 729, Iacobucci J. stated the rule in the following
    manner:

The rule against oath-helping prohibits a party from presenting
    evidence solely for the purpose of bolstering a witness credibility before
    that witness credibility is attacked. This type of evidence is of the sort
    that would tend to prove the truthfulness of the witness, rather than the truth
    of the witness' statements.

[34]

Evidence that
    might have an incidental oath-helping aspect is admissible when tendered for
    some other admissible purpose. That said, where evidence is admissible for
    another purpose, but it is also oath-helping, a court should take any
    appropriate steps necessary to limit the oath-helping nature of the evidence,
    including cautioning the jury:
R. v. Mallory
, 2007 ONCA 46, 220
    O.A.C. 239, at para. 280. Trial judges sitting alone should heed this caution
    and use such evidence only for the other admissible purpose. In this case there
    was no other admissible purpose for the evidence.

[35]

Consequently, the trial judge could not use the evidence of the
    complainants religiosity for credibility purposes, unless
some
    exception to the rule against oath-helping applied. There are two primary exceptions
    to the rule against oath-helping, neither of which apply here.

[36]

First, the rule
    against oath-helping does not apply to an accused person testifying in a
    criminal proceeding:
R. v. Clarke
(1998), 129 C.C.C. (3d) 1 (Ont. C.A.),
    at para. 20. The law gives wide latitude to accused persons to introduce
    oath-helping and other character evidence.

[37]

Second, a party
    can introduce oath-helping evidence to bolster the credibility of a witness
    whose credibility has been attacked. However, the scope of permissible oath-helping
    evidence in such a situation is limited. In
R. v. Tash
,
2013 ONCA 380, [
2013] O.J. No. 2642, Watt J.A.
    helpfully laid out the interplay between an attack on credibility and the
    evidence that may be adduced in response to it:

[
42
]    A witness character for truthfulness
    or mendacity is relevant circumstantial evidence on the question of the
    truthfulness of the witness testimony. Evidence of a witness previous
    deception tends to demonstrate a character for untruthfulness. In turn, the
    existence of such a character trait increases, at least slightly, the
    probability that the witness has lied under oath. Proof of a witness character
    trait for untruthfulness can be accomplished in several ways including proof of
    prior untruthful conduct, the witness associations, and prior history. Any
    other acts offered to establish character should have a significant relation to
    credibility.

[
43
]    Our adversary system requires that
    the proponent of a witness be afforded an opportunity to meet attacks on the
    credibility of the witness by presenting evidence rehabilitating the witness.
    But the
bolstering evidence must be responsive to the nature of the attack
    and not exceed permissible limits.
For example, supportive evidence of good
    character for honesty of a witness impeached by evidence of bad character for
    untruthfulness or dishonesty is permissible. Proof of prior consistent
    statements to rebut impeachment on grounds of recent fabrication is also
    permissible. At root, the admissibility of rehabilitative evidence should
    depend on whether what is proposed is logically relevant to rebut the
    impeaching fact.
The rehabilitating facts should meet the impeachment with
    relative directness. The wall, attacked at one point, may not be fortified at a
    distinctly separate point.
[Citations omitted; emphasis added.]

[38]

This was not a case in which oath-helping evidence was admissible
    for rehabilitative purposes. While the complainants credibility was, of
    course, attacked by implication, the defence did not introduce evidence of the
    complainants character for dishonesty. As noted by Watt J.A. in
Tash
,
    rehabilitative oath-helping evidence must respond with relative directness to
    some particular attack.

[39]

Neither oath-helping exception applies and there was no other
    admissible purpose for the evidence. Therefore, what the complainant said about
    her action of praying was at most part of her narrative of events in the
    immediate aftermath of the assault and the trial judge was wrong to rely on it
    for credibility purposes.

(ii)

Evidence of Religious Beliefs Should Not Be Used
    for Credibility

[40]

Oath-helping
    considerations aside, in my view, reliance on evidence of the complainants
    religiosity for credibility purposes would nevertheless be improper. I conclude
    that evidence of a witnesss religious beliefs is not admissible for the
    purposes of enhancing or impeaching his or her credibility, nor can it be
    relied upon for those purposes. I reach this conclusion for three reasons.

[41]

First,
    evidence of a witness religious beliefs is simply not useful in assessing
    credibility. In considering evidence potentially relevant to credibility the court
    must first ask whether the evidence indicates the witness is more or less
    likely to tell the truth in court. Our law recognizes that
the
    
tendency or disposition of a person to do a
    certain act is relevant to indicate the probability of his doing or not doing
    the act:
R. v. McMillan
(1975), 23 C.C.C. (2d) 160 (Ont. C.A.), affd
    [1977] 2 S.C.R. 824, at p. 167. So in order for character evidence to be relevant
    to credibility, it must establish a
tendency
or
disposition
to
    tell the truth or to lie.

[42]

For example, previous convictions for offences of dishonesty can
    help establish a track record of lying and thus, as a matter of logic and
    experience, a tendency to lie in the future. So too can evidence of an
    accuseds reputation for honesty in the community provide some limited evidence
    of a disposition or tendency to tell the truth (albeit our courts have come to
    view such evidence with increasing skepticism over time).

[43]

But our court has already held that the bare fact of membership in a
    particular faith group does nothing to establish such a tendency or
    disposition. Rosenberg J.A. said in
Minuskin,
at paras. 30-31, that a
    witnesss attendance at a religious school and wearing of a yarmulke in court
    were no indicia of his credibility. To hold otherwise would require the court
    to accept the spurious premise that members of religions are more likely than
    non-members to act morally or honestly.

[44]

Evidence that merely establishes a witness holds religious beliefs does
    not establish a tendency or disposition to tell the truth or to lie. Courts,
    generally, seem to recognize this. This court was not referred to any previous
    authority in which a judge used evidence of a witness religious beliefs, in
    and of themselves, as a basis for determining that he or she was more or less
    likely to tell the truth. There are people of all religious beliefs  and of no
    religious beliefs  who lie, just as there are those who are truthful.

[45]

In this case, there was no actual evidence of the complainants
    religious beliefs. The trial judge had before her nothing more than the
    complainants own assertion of religiosity  and no evidence of what her
    beliefs actually were. But even if more specific, independent evidence was led,
    a witness subjective religious belief, or fear of God, does not establish a
    tendency or disposition to tell the truth.

[46]

Second, and
    relatedly, the risk of prejudice associated with using evidence of a witness religious
    beliefs for credibility purposes is extremely high, far outstripping any
    possible probative value. There is a risk of both moral and reasoning
    prejudice, concepts described by Binnie J. in
R. v. Handy,
2002 SCC 56,
    164 C.C.C. (3d) 481, at paras. 139-147; see also
R. v. Pollock
(2004),
    187 C.C.C. (3d) 212 (Ont. C.A.), at paras. 99-111.

[47]

Evidence of a
    witness religious beliefs may distract the trier of fact from the core issues
    and lead them to draw improper inferences based on prejudice or stereotyping.
    This is particularly true in cases where a witness holds minority religious
    views that are poorly understood, or even disliked, by the majority in society.
    Of course, the converse is also of serious concern: there is a risk that the
    witness who holds more mainstream, popularly understood beliefs is more likely
    to be held credible.

[48]

And there is one
    final risk. In comparing two witnesses, one religious and one not, the
    religious witness may all too often benefit from the easy, ready-made inference
    of credibility that adherence to religious principles provides. No such
    ready-made inference is available to the non-believer, merely because her
    personal ethics may not fit within an easily understood or articulable
    archetype. I agree with the SCAC judge when, in his reasons, he wrote:

[31]     [A]ssessing
    the credibility of any witness is not a precise science or a purely
    intellectual exercise. Rather, it is a difficult and delicate task, often
    defying clear and comprehensive
verbalization
, especially given the complex intermingling of
    impressions that emerge after watching and listening to witnesses and
    attempting to reconcile the various versions of events.
[Citations
    omitted].

In such an
    exercise, the courts must be especially vigilant to excise from consideration
    factors that may lead to unconscious prejudice.

[49]

Third, public
    policy concerns militate against using evidence of a witness religious beliefs
    for credibility purposes. In s. 14 of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5, Parliament has made clear that an oath and affirmation are
    equivalent. This legislative policy reflects the
Charter
values of
    freedom of conscience and religion and of equality. This policy would be
    undermined by permitting or encouraging inquiry into the religious beliefs of
    witnesses in our courts for the purposes of assessing credibility. While there
    are some very limited circumstances in which inquiry into the degree to which
    an oath or affirmation binds a witness conscience is permissible, these are
    restricted to where there is reason to believe that the witness oath or
    affirmation is not genuine. Such an inquiry is primarily a question of
    testimonial competence as opposed to credibility. See for example:
R. v.
    T.R.J.
, 2013 BCCA 449, 6 C.R. (7th) 207, at para. 4;
R. v. A.K.H.
,
    2011 ONSC 5510, 97 W.C.B. (2d) 413, at paras. 27-28;
R. v. Bell
, 2011
    ONSC 1218, [2011] O.J. No. 603, at para. 57.

[50]

It would be
    inappropriate to permit any more invasive inquiry. If religious beliefs (or the
    absence thereof) were to be considered relevant to bolstering a witness
    credibility, then surely they would also be relevant to impeaching credibility.
    Under this approach, witness testimony could easily devolve into a roving
    inquiry into collateral facts relating to the religious beliefs of witnesses.
    The efficient and fair functioning of our courts would not be well served by
    such a development.

[51]

I find further support
    for these conclusions in the law of the United States. The United States has an
    approach to using character evidence for credibility purposes that closely
    resembles the Canadian approach. For example, United States
Federal Rules of
    Evidence
Rule 608 states:

A witnesss credibility may be attacked or supported by
    testimony about the witnesss reputation for having a character for
    truthfulness or untruthfulness, or by testimony in the form of an opinion about
    that character. But evidence of truthful character is admissible only after the
    witnesss character for truthfulness has been attacked.



(Pub. L. 93595, §1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2,
    1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

[52]

At the same
    time, the United States has an explicit bar on using evidence of religious
    beliefs or opinions for credibility purposes. Rule 610 of the United States
Federal
    Rules of Evidence
explicitly prohibits introduction of evidence for this
    purpose. The Rule and commentary read as follows:

Rule 610. Religious Beliefs or Opinions

Evidence of a witnesss religious beliefs or opinions is not
    admissible to attack or support the witnesss credibility.

Notes

(Pub. L. 93595, §1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of the Advisory Committee on Proposed Rules

While the rule forecloses inquiry into the religious beliefs or
    opinions of a witness for the purpose of showing that his character for truthfulness
    is affected by their nature, an inquiry for the purpose of showing interest or
    bias because of them is not within the prohibition. Thus disclosure of
    affiliation with a church which is a party to the litigation would be allowable
    under the rule. Cf.
Tucker v. Reil
, 51 Ariz. 357, 77 P.2d 203 (1938). To
    the same effect, though less specifically worded, is California Evidence Code
    §789. See 3 Wigmore §936
.

[53]

The reasons for
    this rule are obvious. Rule 610 is in place because inquiry into religious
    beliefs or opinions is not sufficiently probative as to the credibility of a
    witness to be admitted when considered in light of the potential for unfair
    prejudice: Michael H. Graham,
Federal Rules of Evidence in a Nutshell,
9th
    ed. (St. Paul: West Publishing Co., 2015), at pp. 306-307. The Federal Rules, and
    the rules in many US states, prohibit this type of questioning for several
    reasons, outlined in Steven L. Emanuel,
Evidence
(New York: Aspen
    Publishers, 2007), at p. 145:

First, it is highly doubtful whether the witness religious
    beliefs have any probative value at all on his
truthfulness
. Second,
    use of such evidence is likely to have a prejudicial effect on the jury.
    Finally, use of such evidence would violate at least the spirit, and possibly
    the letter, of the U.S. Constitutions various provisions regarding freedom of
    worship [internal citations omitted; emphasis in original.]

The authors of
McCormick

on Evidence
come to a similar conclusion: Kenneth S. Broun et al, eds.,
McCormick on
    Evidence
, 7th ed. (St. Paul: Thomson Reuters, 2013), at
§46.

[54]

For those
reasons
, I do not agree with the comments of the SCAC judge
    at paras. 25 and 28 of his reasons, quoted above. It is an error of law to
    consider evidence of a witness religious beliefs in assessing his or her
    credibility. This is true whether the issue is framed in relation to the
    significance of the oath for the witness, or in some other manner.

[55]

However, as stated at the outset of the discussion, I do agree with
    the SCAC judges conclusion
that the complainants apparent religious
    beliefs were a small factor in the trial judges analysis. In fact, the trial
    judge did not even indicate the import of her observation that the complainant
    was a God-fearing type of person. Given that the trial judge made this
    observation in her discussion of the complainants credibility, the SCAC judge
    was entitled to infer she made some use of it. However, reading her reasons as
    a whole, it is apparent her use of the complainants religiosity was at most
    marginal and that she would have reached the same conclusion regarding the
    complainants credibility in any event. I am not persuaded that the trial
    judges observation of the complainants god-fearing nature caused any
    substantial wrong or miscarriage of justice.

(3)

Conclusion

[56]

Despite the SCAC judges errors, described above, I agree with the
    conclusion he reached. I would dismiss the appeal.

Released: October 6, 2016 (EAC)

R.G. Juriansz J.A.

I agree E.A. Cronk J.A.

I agree David Watt J.A.


