R. v. Prebtani, 2008 ONCA 735
[129] The appellant submits that trial counsel did not understand the collateral fact rule and was therefore unable to make appropriate submissions when Crown counsel objected to the evidence of the appellant’s young cousin. She would have testified to an incident when the complainant apparently swore at the appellant in her presence. This evidence, if believed, would have contradicted the complainant on her assertion that she would never do any such thing for fear it would “trigger him off”.
[130] I agree with the appellant that admission of this evidence would not offend the collateral fact rule. As this court explained in R. v. P. (G.) (1996), 1996 CanLII 420 (ON CA), 112 C.C.C. (3d) 263, at p. 275, subject to certain exceptions, the collateral fact rule prohibits a party from adducing extrinsic evidence to contradict a witness unless the extrinsic evidence is relevant to some issue in the case other than merely to contradict the witness. In this case, the cousin’s evidence would not merely contradict the complainant’s assertion that she did not swear at the appellant on the occasion in question. The evidence, if believed, could undermine the complainant’s assertion that the appellant, rather than she, was the verbally abusive party in the relationship. It could also undermine her broad assertion that she would never swear at the appellant for fear that he would abuse her.
[131] However, in considering the impact on the reliability of the verdict, the issue is not simply whether more effective submissions could have been made; clearly they could have been. The issue, it seems to me, is the impact on the reliability of the verdict because of the absence of this evidence, due to counsel’s failure to make appropriate submissions. I am not persuaded that the appellant has shown that the absence of the cousin’s evidence affected the reliability of the verdict. The appellant has not produced on appeal any evidence from the cousin, and so the exact nature of her proposed testimony is unknown. It is not possible to know whether the cousin’s testimony was credible nor how serious the alleged swearing incident was, and therefore the extent to which it would have undermined the complainant’s assertion. It is theoretically possible that the appellant’s defence at trial would have been better had the cousin’s evidence been admitted, but that is not enough to show that the verdict is unreliable.
[132] This court dealt with a similar problem in Davies, where it was alleged that defence counsel was incompetent in his defence of the accused on charges of impaired driving causing death and criminal negligence causing death. A particularly damaging piece of evidence was the results of a blood sample taken from the accused. On appeal, it was argued that defence counsel was incompetent for failing to challenge the admissibility of this evidence. This court held that the necessary prejudice was not made out solely on the basis of an assertion that the evidence should have been excluded. As Moldaver J.A. said at para. 55:
Put differently, absent an evidentiary foundation, it is not enough for the appellant to claim that the blood sample evidence might theoretically have been excluded on the basis of some unidentified Charter breach; nor is it enough to speculate that the hospital staff may have taken the sample improperly or that it somehow became contaminated thereafter and that these hypothetical breaches would have been uncovered by more diligent counsel.
[133] Similarly, in this case, the evidentiary foundation for the submission is not sufficient for this court to determine that the appellant was prejudiced by counsel’s conduct.
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