The Witness Who is Unable to Reject the Suggestions Put to Her



Counsel:            “Is it possible that X occurred?”

Witness:            “Maybe.”

Here, the Witness has not accepted the premise or upshot of the question; as a result, the answer of the witness provides no evidence as to whether or not X occurred.

Questions are not evidence. Answers are evidence. Questions can only become evidence where the witness adopts the proposition put to them in the question as true.

As the Supreme Court of Canada recognized in R. v. Simpson, a proposition put to a witness during cross-examination does not constitute evidence of the proposition, unless the witness adopts it as true and that a witness’s “inability to reject the suggestions put to him does not shed any light on whether those suggestions are true or not.  Without more, all that his answers convey is that he was not personally aware” of the events in question.  “To rely on his answers as evidence of something further … [is] not open to the trial judge.”

R. v. Simpson, 2015 SCC 40 (CanLII), [2015] 2 S.C.R. 827, at paras. 37-38, per Moldaver J.

When a proposition is not adopted by a witness, and no other evidence is led to support the proposition, it has no evidentiary value in the trial. Unless a witness adopts a proposition as true, in order for the proposition to become evidence, the party advancing it has to find another way to get it properly before the trier of fact. This can be done by having another witness adopt it or by leading evidence on the point.

The potential testimonial implications of “non-answers”

However, it may well be that non-answers are, in some situations, a basis for an inference carrying a testimonial implication when the context and the questions and answers are taken together.  The comments of Moldaver J in R. v. Simpson do not mean that drawing inferences from answers like “I don’t remember” are impossible or unfair. One can readily imagine situations where answers like that would support inferences. But context is important….

R. v. Ferguson, 2015 ABCA 401 (CanLII), at paras. 32,33.


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