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OCA decision contains valuable lessons for lawyers

A recent ruling by the Ontario Court of Appeal (OCA) contains lessons for defence counsel about credibility, rules of reply and collateral evidence, Toronto litigator Richard Shekter, tells The Lawyer’s Daily.

The “he-said, she-said” date-rape case highlights the difficulties judges often have in assessing the credibility of witnesses, says Shekter, a partner with Shekter Dychtenberg LLP.

When it comes to courts struggling with credibility, he reminds himself that everyone is human and fallible, reports the online legal publication.

“As we grow older we become convinced, in many instances, that we know when someone’s lying and know when someone’s telling the truth because of the way they present it — their demeanour, the way they speak, sometimes the way they look,” says Shekter.

“And over the course of the last 30 years — and certainly more recently — the appellate courts have become aware, as a result of studies by psychologists and studies of human nature, that you can’t always tell when someone is lying or telling the truth.”

He says many higher-court decisions have criticized trial judges for relying too heavily on demeanour.

“It’s the most difficult thing for a judge to do because if you disbelieve the accused and you accept the evidence of the Crown beyond a reasonable doubt, somebody is going to be convicted, sentenced and, in many instances, is going to go to jail,” he explains.

“The stakes are incredibly high and that’s why courts bend over backwards to ensure that when assessments of credibility are made they’re made on a basis that makes sense and that the assessments are internally consistent.”

In the recent case, the court heard that the appellant met the complainant at a university bar in 2012. After chatting over drinks, he walked her home — about all this, both sides agreed. After this point, however, their versions of events differ.

According to court documents, there was consensual sexual touching after they arrived at her dorm room. She says he pushed her to the floor and raped her. He says she gave her consent before intercourse.

He was eventually convicted of sexual assault. He then appealed on multiple grounds, says the article.

His lawyer argued that the trial judge erred in evaluating the credibility of both parties and in the handling of a key piece of evidence.

“In my view, the credibility evaluation in this case — one of the most difficult tasks trial judges perform — was sufficiently problematic to require this conviction to be overturned and a new trial ordered. The trial judge did not properly deal with an admitted exhibit," wrote Justice David Paciocco on the appeal.

"More importantly, he erred in the admission and use of reply evidence that related to [the accused’s] credibility. Most significantly, this is one of those uncommon cases where the conviction cannot stand because the trial judge applied different levels of scrutiny to the testimony of [each of the parties]."

In a decision released on Feb. 26, Paciocco set aside the conviction and ordered a new trial, according to the publication.

Shekter says defence lawyers can learn lessons from this case about the rules of reply evidence and calling collateral evidence in a reply.

“By definition collateral evidence means evidence that isn’t germane to a specific issue in the case, but simply goes to show, for example, if someone is a liar. That is something that’s a vital issue in the case in chief and during the course of cross-examination by the Crown attorney of the defence," he says. 

"But you can’t call evidence in reply to rebut the evidence presented in chief on an unrelated issue,” Shekter tells AdvocateDaily.com

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