Qu'est-ce que la collusion involontaire?

R. v Richer, 2023 ONSC 3158

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[249]      Inadvertent tainting, also referred to as innocent collusion, occurs when a witness’ testimony is influenced by hearing evidence from other witnesses.  Through conversation with others, a witness may start to remember the situation in question differently or certain details differently or the witness may interpret differently what he or she heard or saw or felt, as a result of hearing the interpretations of others.  The inadvertent or innocent nature of this form of witness contamination refers to the fact that it can happen without the witness ever intending to seek out information with a view to changing or aligning their own account.  It can happen subconsciously, without the witness even being aware that his or her later account or interpretation of events has been subtly changed by hearing the views and accounts of others.  [8]

[250]      Inadvertent tainting should be distinguished from collusion which is the term used to describe the situation in which witnesses get together and decide together what they are going to say to the police and/or in court to appear to be telling a consistent and reliable story.[9]

[251]      It is important to note that just because one witness has heard what someone else will say or believes happened, or has discussed another person’s recollections or interpretations, it does not necessarily mean that either witness is not telling the truth or that their evidence was tainted.[10]

[252]      Outright collusion between witnesses is a credibility issue.  If a court finds that witnesses have actively tried to “get their stories straight,” the ability of the court to find that those witnesses are honest and credible and are intending to tell the truth is compromised.  Inadvertent tainting is a reliability issue.  A witness whose evidence has been tainted, without him or her realizing it, through inadvertent tainting, may well be a credible witness who appears to be honest, forthright and telling the truth.  The witness may well believe he or she is telling the truth.  But the fact that his or her account has changed, even subtly, but in a relevant way, because of discussions with others, means that it may be less reliable.[11]

[253]      As Justice Nordheimer wrote in R. v. C.G.[12]:

The key point is that, unlike [collusion] which corrupts the evidence of all participants, where [inadvertent tainting] has occurred, a close examination is required to determine what impact that innocent sharing of information may have had on the evidence of each of the witnesses who is a party to the exchange.  As Sopinka, J. said in R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 45:

Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose. [Emphasis in original.]