Evidence of Religious Beliefs is Inadmissible for the Purpose of Enhancing or Impeaching Credibility
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.
In R. v. Santhosh, 2016 ONCA 731
(CanLII), the Court of Appeal for Ontario set out three reasons for this rule.
1. Not Probative
Evidence of a witness's 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. The tendency or disposition of a person to do a certain act is relevant to indicated the probability of his doing or not doing the act.
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. The tendency or disposition of a person to do a certain act is relevant to indicated the probability of his doing or not doing the act.
In order for character evidence
to be relevant to credibility, it must establish a tendency or disposition
to tell the truth or to lie. The bare fact of membership in a faith group does
nothing to establish such a tendency or disposition. There are people of all
religious beliefs – and of no religious beliefs – who lie, just as there are
those who are truthful.
2. Risk of Moral and
Reasoning Prejudice
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.
[These concepts were described in
R. v. Handy, 2002 SCC 56
(CanLII) at paras. 139-147; see also R. v. Pollock (2004), 187
C.C.C (3d) 212 (Ont. C.A.) at paras. 99-111].
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.
The courts must be especially
vigilant to excise from consideration factors that may lead to unconscious
prejudice.
3. Contrary to Public
Policy
Public policy concerns militate
against using evidence of a witness’ religious beliefs for credibility
purposes. The Charter values of freedom of conscience and religion and
of equality 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].
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