WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

(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) MANDATORY ORDER ON APPLICATION — 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 complainant of the right to make an application for the order; and

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

486.6 OFFENCE — (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.

The order which has been made does not relate to the complainant. It relates to another complainant.

Court Information

Ontario Court of Justice

Date: 2019-07-09

Court File No.: Ottawa 18-RD19579

Between:

Her Majesty the Queen

— and —

Joshua Ainslie Boyle

Before: Justice Peter K. Doody

Ruling on solicitor-client privilege

Heard on: July 4, 2019

Reasons for Decision released on: July 9, 2019

Counsel

Meaghan Cunningham — counsel for the Crown

Lawrence Greenspon, Eric Granger and Ninetta Caparelli — counsel for the accused

Howard Krongold — counsel for the complainant

Decision

DOODY J.:

Context and Issue: Has the Complainant Implicitly Waived Her Solicitor-Client Privilege?

[1] The complainant testified during cross-examination that she had given interviews to a number of media outlets, including ABC News, the Washington Post, and the CBC, after her cross-examination was suspended for the purpose of allowing applications under s. 276 and 278.92 to be heard and, subsequently, as a result of her counsel applying for certiorari to quash my ruling on the s. 276 application. During the course of those interviews she spoke of a number of matters about which she had testified in her earlier evidence before me.

[2] The complainant was under a witness exclusion order I issued at the start of the trial. When she left the stand on April 3, 2019, I reminded her of the order. I said:

… because you're a witness in this case, and I've made an order, what we call an exclusion order, you're not allowed to talk about your evidence, either what you've already testified to or what you may testify to before the trial is over. You're not allowed to talk about that with any other witness or potential witness in this case. Do you understand that, until the trial is completed, that is until all of the evidence is in. Do you understand that?

[3] The complainant testified that she did understand. Defence counsel then said that the complainant should also be aware that Crown counsel may speak with her regarding logistics and arrangements for her testimony. I then told her that normally lawyers are not allowed to talk to their own witnesses when they are in the middle of examination or cross-examination, subject to certain exceptions. I said that I had made an exception to allow Crown counsel to speak to her about making arrangements with respect to her attendance to give evidence.

[4] When the trial resumed on July 2, 2019, defence counsel put to the complainant what I had said to her on April 3, 2019. The complainant gave the following evidence in cross-examination:

Q. Do you recall being given that instruction by His Honour on April 3rd of this year?

A. I do, and that is why I was very limited in what I would discuss in interviews.

Q. I see, and yet, you discussed in the various media interviews all the things that I've just gone over with you. Various excerpts from those interviews, right?

A. Yes.

Q. Right.

A. My understanding from my lawyers was that these were acceptable – acceptable things to discuss.

Q. Are you saying, Ms. Coleman, that prior to doing these media interviews – without telling me what that advice was, are you saying that prior to doing these media interviews you sought counsel as to whether or not they were properly done?

A. Yes, I sought counsel from both my family law lawyers and from my criminal court lawyer.

Q. … and you're not telling us ma'am, that any of your lawyers said that it was okay for you to do these kinds of interviews, are you?

[5] Crown counsel then objected on the basis that the question asked the complainant to provide information which was subject to her solicitor-client privilege. Defence counsel took the position that when the complainant testified that she sought counsel from her lawyers before she did the interviews, she had waived the privilege.

[6] Neither counsel was prepared to argue the matter at that time. The complainant's criminal law counsel was present in court. It became apparent that there was a potential for him to become a witness. I advised him that he was subject to the witness exclusion order and could not talk to the complainant about her evidence. He asked to be permitted to provide the complainant with the name and contact information for a new lawyer. I agreed that he could do so, and that he could speak to the complainant's new counsel to ensure that she received appropriate legal advice.

[7] I advised the complainant that an issue had arisen as to whether she had waived her solicitor-client privilege when she testified that it was her understanding from her lawyers that these were acceptable things to discuss.

[8] The next morning, Mr. Krongold appeared for the complainant. He had not been her lawyer before then. Defence counsel submitted that the complainant did not have the right to be heard on the issue of whether she had waived her privilege. After hearing from all parties, including Mr. Krongold on behalf of the complainant, I ruled that, in all the circumstances of this case, she could make submissions on that issue. I gave oral reasons for that decision.

[9] The issue before me is whether the complainant waived her solicitor-client privilege by testifying in cross-examination "My understanding from my lawyers was that these were acceptable – acceptable things to discuss." and "Yes, I sought counsel from both my family law lawyers and from my criminal court lawyer."

[10] I have decided that she did not implicitly waive her privilege by giving that evidence. These are my reasons.

The Law

(a) Solicitor-Client Privilege is a Fundamental Right

[11] Solicitor-client privilege protects from disclosure any confidential communication between a client and his or her lawyer in order to obtain or receive legal advice. (Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809 at para. 15)

[12] This privilege holds a unique status. It is a substantive rule of law essential to the effective operation of the legal system. Its importance stretches beyond a client and his or her lawyer. This requires that it must be as close to absolute as possible. (R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445)

[13] The Supreme Court of Canada set out the test for infringing solicitor-client conduct in McClure. As that court reiterated in R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185 at para. 29, that test is stringent and will only be satisfied in rare circumstances. It requires application of the innocence at stake test, as described in paras. 47 to 51 of McClure. Defence counsel do not submit that the circumstances before me justify infringement of the privilege on that basis.

(b) The Privilege Can Be Waived Explicitly or Implicitly

[14] As McLachlan J., sitting in the British Columbia Supreme Court, held in S & K Processors Ltd. v. Campbell Ave. Herring Producers Ltd., [1983] 4 W.W.R. 762 (a seminal and oft-quoted judgement), waiver of solicitor-client privilege is ordinarily established by what is called "explicit waiver", where the possessor of the privilege both knows of the existence of the privilege and voluntarily evinces an intention to waive that privilege. It is not suggested that that has occurred here.

[15] McLachlan J. went on to write at paragraphs 6 and 10:

However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. … where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost: Hunter v. Rodgers, [1982] 2 W.W.R. 189.

Double elements are predicated in every waiver – implied intention and the element of fairness and consistency. In the cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent. The law then says that in fairness and consistency, it must be waived.

[16] Defence counsel submit that this principle applies here – that the complainant relied on the legal advice she says she received from her family law and criminal law lawyers to justify her giving the interviews knowing that she had been subject to the witness exclusion order. Counsel submit that to be fair to the accused, the privilege must have been waived so that the complainant can be meaningfully cross-examined, and so that they may call evidence to rebut her on that point. He says that the complainant has implicitly waived her privilege. In effect, he submits that to allow her to shield further inquiry into communications between her and her lawyers would allow her to both approbate and reprobate.

(c) The Action Relied Upon for an Implicit Waiver Must Be Voluntary

[17] The complainant's counsel submits that no implied waiver took place here because the complainant's evidence that she relied on legal advice to conclude that she could speak to journalists as she did arose in cross-examination. He submits that because she was compelled to answer questions in cross-examination, this was not "voluntary" as required by the test enunciated by McLachlan J. in S. & K Processors.

[18] The Supreme Court of Canada dealt with this issue in R. v. Campbell, [1999] 1 S.C.R. 565. In that case the defendants were found guilty of conspiracy to traffic in cannabis resin and possession of cannabis resin for the purpose of trafficking. They bought hashish from undercover RCMP officers. After they were found guilty, the defendants applied to stay the proceedings on the basis of an abuse of process because in selling them the hashish, the officers had violated the Narcotic Control Act. In cross-examination, one of the officers testified that he believed that the operation was legal. He said that he had consulted a senior lawyer at the Department of Justice to confirm his understanding. Defence counsel sought production of the legal advice from the Department of Justice to police. In the Court of Appeal, the RCMP relied on that legal advice to support its submission that the police had acted in good faith. At issue in the Supreme Court was whether the RCMP had implicitly waived its solicitor-client privilege in the advice.

[19] At para. 70, Binnie J. wrote for the Court:

The Crown led evidence from Cpl. Reynolds about his knowledge of the law with respect to reverse sting operations - he testified that he had read the Superior Court decision in Lore, supra, and was of the view that the operation in question was legal. But Cpl. Reynolds also testified, in answer to the appellants' counsel, that he sought out the opinion of Mr. Leising of the Department of Justice to verify the correctness of his own understanding. The appellants' counsel recognized that this alone was not enough to waive the privilege. Cpl. Reynolds was simply responding to questions crafted by the appellants, as he was required to do. Appellants' counsel accepted that he had no right at that point to access the communications. [emphasis added]

[20] Binnie J. went on to say that when the RCMP relied on this evidence in its factum in the Court of Appeal to support its argument that the police had acted in good faith, it had implicitly waived the privilege. He wrote:

it is not always necessary for the client actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms a part. It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. The clear implication sought to be conveyed to the court by the RCMP was that Mr. Leising's advice had assured the RCMP that the proposed reverse sting was legal.

[21] The British Columbia Court of Appeal held in R. v. Cresswell (2000), 2000 BCCA 583, 149 C.C.C. (3d) 286 at para. 42, relying on Campbell, that because police officers' reliance on legal advice had only been raised in cross-examination, and not by Crown counsel in its submissions on an abuse of process motion, there had been no implicit waiver.

[22] The complainant's counsel submits that similar principles apply here. The complainant was required to answer the question put to her in cross-examination, so that her answer was not voluntary, as is required for an implicit waiver of privilege.

[23] The Ontario Court of Appeal has also held that an implicit waiver of solicitor-client privilege cannot arise from answers to questions put in cross-examination. In R. v. Rutigliano, 2015 ONCA 452, the defendant sought disclosure of advice from Crown counsel to police to support his submission that the police had committed an abuse of process. Hill J., the motion judge, ordered that material be produced to him for review to determine whether disclosure should be made. Crown counsel invited a judicial stay of proceedings rather than comply with that order. The Court of Appeal held that the order was premature, and that the motion judge should have deferred his ruling until he determined whether abuse of process could be established, or an acquittal obtained, without breaching the privilege.

[24] Defence counsel had argued that when police officers testified that advice from Crown counsel played a part in investigative decisions they made, this amounted to a waiver of solicitor-client privilege as between the OPP and the Crown. Hill J. had ruled both that the privilege was the O.P.P.'s and the officers did not have the authority to waive it, and that the officers' responses to questions in cross-examination about why they undertook the course of action they did was not sufficient to waive a breach of solicitor-client privilege. He held that as witnesses, the officers were bound to answer the questions put to them and this could not amount to a waiver of solicitor-client privilege. The Court of Appeal held at para. 41 that it was open to Hill J. to hold both that the officers had no authority to waive the privilege and that there was no implicit waiver by the officers. The Court did not engage in more extensive analysis of this point.

[25] The Court of Appeal did, however, engage in extensive analysis in its decision in R. v. Youvarajah, 2011 ONCA 654. A witness in a murder trial had previously pleaded guilty to second degree murder in the same death. An Agreed Statement of Facts was filed when he entered his guilty plea. At the subsequent trial of another accused, he testified inconsistently with the contents of the Agreed Statement of Facts. The trial judge refused to allow Crown counsel to introduce the Agreed Statement of Facts for its truth as a principled exception to the hearsay rule. He held, among other things, that the witness' solicitor-client privilege in what had been said between him and his lawyer before the Agreed Statement of Facts was entered into evidence would prevent meaningful questioning of him or his trial counsel about how the Agreed Statement of Facts came into being.

[26] The Court of Appeal held that the trial judge had erred. It ordered a new trial. In the course of her reasons for the Court, Simmons J.A. noted that issues of solicitor-client privilege could arise at the new trial about whether the witness' counsel had properly advised the witness about the consequences of signing the Agreed Statement of Facts and whether they were acting on instructions in their communication with the Crown and the court. She held that it would be for the trial judge to determine whether the witness' evidence at the new trial amounted to an implied waiver. She referred to McLachlin J.'s enunciation of the test for express waiver in S & K Processors and wrote:

[147] Despite these requirements, an implied waiver of solicitor-client privilege may occur where fairness requires it and where some form of voluntary conduct by the privilege holder supports a finding of an implied or objective intention to waive it. Importantly, a limited implied waiver may arise where a client alleges a breach of duty by his counsel.

[148] According to Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), sec. 2327 pp. 635-38, in relation to voluntary testimony, waiver can be implied where fairness demands it. One such circumstance arises where a client alleges misconduct on the part of his counsel:

2327 Waiver in general; Voluntary testimony as a waiver.

What constitutes a waiver by implication?

Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege will cease whether he intended that result or not. He cannot be allowed after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final. As a fair canon of decision, the following distinctions may be suggested:

(6) When the client alleges a breach of duty to him by the attorney, the privilege is waived as to all communications relevant to that issue.

(Emphasis added [by Simmons J.A.])

[156] However, if it should happen that D.S. testifies at the new trial in a manner that alleges misconduct on the part of his counsel at the guilty plea proceeding, in my opinion, a strong argument would arise that he had impliedly waived solicitor-client privilege to the extent necessary to permit his counsel to offer an explanation.

[157] I recognize that D.S. will be testifying under subpoena and that the type of testimony I have referred to may arise during cross-examination -- factors that could potentially go to the voluntariness of his testimony: R. v. Creswell, [2000] B.C.J. No. 2171, 2000 BCCA 583; R. v. Chan. I also recognize that "solicitor-client-privilege must be as close to absolute as possible" and that "it will only yield in certain clearly defined circumstances": R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, [2001] S.C.J. No. 13, at para. 35.

[158] Nonetheless, it will be for the trial judge at the new trial, with the benefit of fulsome submissions from counsel, to resolve questions concerning implied waiver of solicitor-client privilege, should they arise, having regard to the specifics of D.S.'s testimony. As I have said, this will involve a fact-specific determination that may include an assessment of issues such as the reasonable inferences arising from D.S.'s testimony and whether particular evidence was voluntary or compelled even if given under cross-examination.

[27] Counsel for the complainant submits that a "bright-line rule" prohibits a determination that solicitor-client privilege has been waived when the evidence relied upon to found the waiver arise during cross-examination. He relies on the decision of the British Columbia Court of Appeal in Soprema Inc. v. Woolridge Mahon LLP, 2016 BCCA 471. At para. 49 of that decision, Harris J.A. wrote for the Court that the weight of authority supports the proposition that "a party must voluntarily inject into the litigation legal advice it received or its understanding of the law before waiver can be implied." (emphasis by Harris J.A.) He noted the Supreme Court of Canada's holdings in McClure and Goodis v. Ontario, 2006 SCC 31, that solicitor-client privilege must be "as close to absolute as possible" and that privileged communications should only be disclosed where "absolutely necessary", applying "as restrictive a test as may be formulated short of an absolute prohibition in every case." He then wrote:

51 Accordingly, one must be cautious about a test for implied waiver that does not rest on a bright line capable of identifying "clearly defined circumstances", which depends on balancing interests, and which appears to treat implied waiver as ultimately a discretionary call about trial fairness. In my opinion, the test relied on by the judge does not adequately give effect to the near absolute protection of solicitor-client privilege mandated by the Supreme Court. Rather than permitting the abrogation of privilege only in clearly defined circumstances, the recognition of the privilege becomes, at best, subject to a balancing of interests on a case-by-case basis. This, in my view, is inconsistent with more recent pronouncements both of the nature and of the importance of solicitor-client privilege.

[28] I do not accept the complainant's counsel's submissions that this is the law in Ontario and that it would be improper for me to consider trial fairness when deciding whether the complainant has implicitly waived her solicitor-client privilege. In my view, that would be contrary to the decision of the Court of Appeal in Youvarajah which is binding on me. That decision was rendered after McClure and Goodis. Simmons J.A. referred to McClure in her decision. And she wrote that fairness must be considered, although the fact that the evidence relied on for the waiver arose in cross-examination may be important in determining voluntariness.

[29] Nor do I accept that the rule is different where the client's alleged implicit waiver includes an allegation that there has been misconduct on the part of his or her counsel. That rule was described almost 40 years ago in R. v. Dunbar and Logan, [1982] O.J. No. 581 at para. 67 (C.A.) as resting

upon the ground of practical necessity that if effective legal service is to be encouraged the privilege must not stand in the way of the lawyer's just enforcement of his rights to be paid a fee and to protect his reputation.

[30] This decision was made before the development of the law of solicitor-client privilege given expression in McClure, Goodis, Pritchard and Brown. It was before McLachlan J.'s judgment in S & K Processors which explicitly referred to fairness as a basis for her enunciation of the law of implied waiver. The fairness she refers to includes fairness to the person against whom the privilege is being erected. I do not understand why lawyers whose reputation and entitlement to be paid are at stake should more easily be able to support a finding of implicit waiver by a client than an accused person whose liberty is at stake.

[31] Nor do I accept, as is submitted by counsel for the complainant, that implicit waiver can only be asserted by one party against another party, where the word "party" means one who is party to proceedings before a court. There is no basis in principle why that should be so. And the witness whose privilege was potentially at issue in Youvarajah was not a party to the prosecution in which he was a witness. He was merely a witness, as is the complainant.

(d) Conclusion on the Test I Must Apply

[32] I conclude that the following principles must be followed in determining whether the solicitor-client privilege has been waived:

(a) the waiver must be necessary for fairness and consistency, considering the interests of the privilege holder and the person against whom the privilege is being asserted;

(b) in making the determination, I must consider the fundamental, near-absolute nature of solicitor-client privilege and its importance to the proper functioning of the legal system;

(c) the basis for the waiver must result from a voluntary action of the privilege holder;

(d) in determining whether the action of the privilege holder is voluntary, it is relevant that the action was an answer given in cross-examination; and

(e) the fact that the action was an answer given in cross-examination is strong evidence that it was involuntary, but the determination of this issue is dependent on the facts, including an assessment of such issues as the reasonable inferences arising from the privilege holder's testimony and whether the evidence in issue was voluntary or compelled even if given in cross-examination.

The Principles Applied: No Implicit Waiver

[33] The complainant was asked by defence counsel, in cross-examination, to justify her speaking to journalists about things she had testified to despite what she had been ordered not to do. Although it was stated in a declarative rather than an interrogatory form, that is the norm for cross-examination. The purport of the question was to ask the complainant why she told the journalists what she did. Her response was that she understood from her lawyers that these were acceptable things to discuss.

[34] This answer was not inserted into her evidence in a non-responsive manner. It was responsive to the question that had been put to her. It purported to explain why she had done what she had done. In my view, this was not a voluntary statement, just as the statements made by the police officers in cross-examination in Campbell, Cresswell, and Rutigliano were not voluntary.

[35] The complainant is not a lawyer. She gave this answer, as she was required to do, without an opportunity to consult counsel before answering. It could not be said to be a fully considered action.

[36] While there is unfairness to the defendant as a result of the assertion of the privilege, this is often a consequence of the assertion of the privilege. It would be "unfair" to the defendant even if the complainant had, instead of saying that her understanding from her lawyers was that these were acceptable things to discuss, simply said that she was unable to say why she did it because to do so would breach her privilege which she was not waiving.

[37] The fairness determination must include, as I have said, a consideration of the fundamental nature and relative impermeability of the solicitor-client privilege. It is as close to absolute as possible and should only be held to be waived where fairness requires it and the action relied upon for the waiver was clearly voluntary.

[38] In all of the circumstances, I am satisfied that the complainant has not implicitly waived her solicitor-client privilege in the communications relating to what she could say and to whom as a result of being bound by the witness exclusion order. I make no finding on any other potential waiver of the privilege, no other such issues having been raised by the objection.

Ancillary Matters

[39] I make two more points.

[40] The fact that communications between the complainant and her lawyers on this issue were and remain privileged does not foreclose all cross-examination that relates to the issue of why she spoke to the journalists as she did. As the Court of Appeal held in Youvarajah, other areas may be appropriate to inquire about. In that case, Simmons J.A. wrote:

[84] However, solicitor-client privilege did not prohibit questioning D.S. about his understanding of the Agreed Statement of Facts, any conditions that may have been attached to the plea deal (such as whether he would be required to testify at the respondent's trial) and the consequences of misleading the police, the Crown and the court; it did not prohibit questioning D.S. about his motives for making what he now claimed were three false statements in the Agreed Statement of Facts; and it did not prohibit questioning D.S. about matters he instructed his counsel to communicate to the Crown and to the court.

[85] The first two areas of questions related to what was in D.S.'s mind. Although his understanding of the Agreed Statement of Facts and the plea deal and his motivation for entering into it may have been informed at least to some extent by solicitor-client communications, the questions and answers in these areas need not have revealed those communications.

[41] Secondly, I have not yet decided what, if any, use can be made by me of the evidence the complainant has given that her understanding from her lawyers was that these were acceptable things to discuss with the journalists. At para. 70 of his reasons in Campbell, Binnie J. noted that defence counsel at trial had said, when the officers testified that they had relied on counsel's views in concluding that what they had done was appropriate, "I certainly don't want to hear the argument that 'Oh well, the police acted in good faith because they acted on legal advice.'" Would it be appropriate for me to hear the argument that the complainant had acted in good faith in speaking with the journalists because she acted on legal advice? Would it be appropriate for me to even consider that evidence of the complainant's?

[42] Both counsel submitted, in response to my question about this during oral argument, that I could and should consider and rely on her answer – the Crown to support a finding that the complainant had acted in good faith, and defence counsel to support a finding that her evidence was not worthy of belief because it was not credible that competent counsel would give such advice. I make no findings about those things. It is not the time or occasion for me to do so. But I am not certain that it would be proper for me to take this evidence into consideration, given the impossibility of cross-examining on or leading further evidence about the communications in issue. I note that the Court of Appeal only last week, in R. v. Olusoga, 2019 ONCA 565, warned of the dangers of considering what may have been told to counsel during a privileged communication. I would appreciate hearing from counsel in closing argument on this issue.

Released: July 9, 2019

Signed: Justice P.K. Doody

Footnote

[1] The issue of whether evidence could be called to rebut the complainant on such evidence is not clear-cut. Such evidence could potentially breach the collateral fact rule. The Court of Appeal has held, however, that the rigid conception of what facts are collateral embraced in R. v. Krause, [1986] 2 S.C.R. 466, may have been overtaken by a more principled approach that does not treat sufficiently important evidence about credibility as collateral. (R. v. Kiss, 2018 ONCA 184 at para. 67; R. v. C.F., 2017 ONCA 480 at paras. 58-66)