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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 “I’m a bad girl.” The appellant maintained that he ignored the incident, which he said lasted about 10 seconds, and carried on to complete the complainant’s 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 appellant’s report of the incident was noted in the complainant’s chart.

[4] The trial judge rejected the appellant’s testimony, finding that it was “contrived”, appeared to be “well-rehearsed” and made “very little sense” in several respects. She accepted the clinic owner’s evidence that the appellant reported the incident but held that the appellant’s 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 complainant’s 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 complainant’s 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 appellant’s proposed grounds of appeal involve questions of law alone concerning the trial judge’s assessment of the complainant’s 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 judge’s 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 appellant’s 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 complainant’s 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 complainant’s 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 complainant’s credibility.

Analysis

(1) Complainant’s Appearance and Demeanour

[10] I turn first to the trial judge’s comments about the complainant’s 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 complainant’s 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 judge’s analysis of the complainant’s 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 complainant’s courtroom appearance and demeanour in assessing her credibility. The manner of the complainant’s dress in court was only a minor element of the trial judge’s credibility analysis and, essentially, was of no moment. In any event, the Crown submits, the appellant’s 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 complainant’s in-court dress.

(b) Discussion

[13] In her analysis of the complainant’s credibility and reliability, the trial judge stated:

I have considered [the complainant’s] 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 appellant’s complaint regarding the trial judge’s reference to the complainant’s manner of dress in court. He held, at paras. 22 and 23 of his reasons, that the complainant’s “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 complainant’s overall credibility.

[15] With respect, I disagree. To the extent that the trial judge treated the complainant’s manner of dress in court as a relevant consideration bearing on the complainant’s 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), 2003 CanLII 11604 (ON CA), 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 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 82, 88-89, per L’Heureux-Dubé J., concurring. A complainant’s 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 judge’s error in this case – treating the complainant’s manner of dress in court as a relevant factor in her assessment of the complainant’s credibility – falls short of justifying appellate intervention.

[19] The trial judge’s 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 judge’s reasons considered as a whole reveal that the complainant’s in-court appearance and demeanour, including the complainant’s manner of dress, did not form a material part of her reasoning regarding the complainant’s credibility.

[20] I see no reason to interfere with the SCAC judge’s 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 complainant’s testimony” (citations omitted).

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

(2) Complainant’s Apparent Religious Beliefs

[22] I reach a similar conclusion regarding the trial judge’s mention of the complainant’s apparent religious beliefs. Though I do not agree with the SCAC judge’s statement of the law, I would not interfere with the result given his conclusion the trial judge placed minimal weight on the complainant’s 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 complainant’s] 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 complainant’s apparent religious beliefs to bolster the complainant’s credibility.

[25] The SCAC judge accepted that the complainant’s apparent religious beliefs were a “small factor” in the trial judge’s 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 complainant’s 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 don’t know what to do, I’m 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 I’m telling the truth.”

[25] As a matter of principle, if the evidence reveals that a witness’s 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 complainant’s apparent religious beliefs to buttress the complainant’s credibility.

[27] The appellant argues that the SCAC judge compounded the trial judge’s 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 court’s decisions in Minuskin and R. v. Wiebe (2006), 2006 CanLII 3955 (ON CA), 207 O.A.C. 209.

[28] The Crown argues that the trial judge did not err in her analysis of the complainant’s 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 complainant’s character that was inconsistent with the appellant’s depiction of the complainant and her conduct. Further, the complainant’s apparent religious beliefs were an insignificant factor in the trial judge’s overall assessment of the complainant’s 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 judge’s 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 judge’s conclusion that the complainant’s apparent religious beliefs were a “small factor” in the trial judge’s 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 complainant’s credibility.

[31] First, although the Crown did not elicit the complainant’s 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 judge’s 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 complainant’s religiosity for credibility purposes would nevertheless be improper. I do not agree with the SCAC judge’s 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 witness’s credibility. In R. v. B. (F.F.), 1993 CanLII 167 (SCC), [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 complainant’s 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), 1998 CanLII 14604 (ON CA), 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 complainant’s credibility was, of course, attacked by implication, the defence did not introduce evidence of the complainant’s 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 complainant’s religiosity for credibility purposes would nevertheless be improper. I conclude that evidence of a witness’s 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), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff’d 1977 CanLII 19 (SCC), [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 accused’s 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 witness’s 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 complainant’s religious beliefs. The trial judge had before her nothing more than the complainant’s 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), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (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 witness’s credibility may be attacked or supported by testimony about the witness’s 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 witness’s character for truthfulness has been attacked.

(Pub. L. 93–595, §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 witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Notes

(Pub. L. 93–595, §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. Constitution’s 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 judge’s conclusion that the complainant’s apparent religious beliefs were a “small factor” in the trial judge’s 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 complainant’s 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 complainant’s religiosity was at most marginal and that she would have reached the same conclusion regarding the complainant’s credibility in any event. I am not persuaded that the trial judge’s observation of the complainant’s “god-fearing” nature caused any substantial wrong or miscarriage of justice.

(3) Conclusion

[56] Despite the SCAC judge’s 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.”