Analyzing Testimony

From Criminal Law Notebook
This page was last substantively updated or reviewed June 2022. (Rev. # 89608)

Findings of Fact

See also: Admissions of Fact

Only the trier-of-fact (ie. the judge or jury) can make findings of fact unless there is an agreement on facts or an admission under s. 655 of the Code.[1]

Analysis of Testimony

Tools of Analysis

When considering testimony evidence, its value comes down to four factors:[2]

  1. perception,
  2. memory,
  3. narration, and
  4. sincerity
Evidence Not to be Analyzed Separately

Facts should not be examined separately and in isolation to the standard of proof beyond a reasonable doubt.[3]

However, beyond determining whether the evidence, on the whole, proves guilt beyond a reasonable doubt, "it is for the trier of fact to determine how to proceed."[4]

No Choosing of Stories

When confronted with two contradictory stories, a judge does not need to make a finding of fact as to which story is correct.[5]

An approach that permits choosing of stories would "erode" the presumption of innocence and standard of proof beyond a reasonable doubt.[6] However, it is not an error to make "finding of credibility as between the complainant and the accused" as long as all the steps of further analysis are taken.[7] It is only in error should the judge treat the task as complete once a finding of credibility as between the complainant and accused.[8]

Guilt should not be based a credibility contest or choice between competing evidence.[9]

Order of Witness Analysis

Should the accused testify, it is generally expected that the accused's evidence be analyzed first.[10] However, should the judge assess the complainant's evidence first is not necessarily wrong so long as it does not have the effect of reversing the burden of proof.[11] What is important is that the evidence of each witness is tested against the evidence of the others.[12]

  1. see Admissions of Fact
  2. Kenneth S. Broun et al., 2 McCormick on Evidence, (6th ed.) (USA: Thomson/West, 2006), §245, at p. 125 and R v Baldree, 2012 ONCA 138 (CanLII), 280 CCC (3d) 191, per Feldman JA (2:1), at para 43 - appealed on other grounds at 2013 SCC 35 (CanLII)
  3. R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J (6:0) ("facts are not to be examined separately and in isolation with reference to the criminal standard")
    R v Narwal, 2009 BCCA 410 (CanLII), [2009] BCJ No 1941 (CA), per Frankel JA (2:1), at para 88
    R v Menow, 2013 MBCA 72 (CanLII), 300 CCC (3d) 415, per Cameron JA (3:0)
  4. Morin, supra, at para 40 ("during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt. Beyond this injunction, it is for the trier of fact to determine how to proceed")
  5. R v Avetysan, 2000 SCC 56 (CanLII), [2000] 2 SCR 745, per Major J (4:1), at para 2
  6. R v DW, 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J (4:1), at pp. 757-8 (SCR) or 409 (CCC)
    Avetsyan, supra, at paras 18 to 22
    R v JR, 2014 QCCA 869 (CanLII), [2014] Q.J. No 3957 (CA), per Hesler CJ, at para 38 (the judge “cannot simply choose one over the other. That would in effect lower the prosecution's burden from proof beyond a reasonable doubt to proof on the balance of probabilities”)
  7. R v Chittick, 2004 NSCA 135 (CanLII), 24 CR (6th) 228, per Cromwell JA (3:0), at paras 23 to 25
  8. Chittick, ibid., at paras 23 to 25
  9. R v MDR, 2015 ONCA 323 (CanLII), per curiam (3:0)
    R v Fleig, 2014 ABCA 97 (CanLII), 572 AR 161, per curiam (3:0), at para 24 ("primary concern of the framework in W(D) is that a trier of fact should not line up the Crown and defence evidence and select one over the other.")
    R v ST, 2015 MBCA 36 (CanLII), MJ No 112, per Mainella JA (3:0), (“a trial judge cannot render a verdict in a criminal case by the process of simply deciding which competing narrative of events he or she prefers; that is the so-called ‘credibility contest’ error.”)
  10. . W.(D.), [1991] 1 S.C.R. 742
    see Weighing Testimony of the Accused
  11. R v Gerrard, 2022 SCC 13 (CanLII, per Moldaver J ("It is immaterial that the trial judge assessed the complainant’s credibility before the accused’s; this does not automatically demonstrate that she reversed the burden of proof ")
  12. e.g. Gerrard, ibid.

Acceptance of Evidence

Selective Acceptance of a Witness' Evidence

Evidence before a judge are not facts. The judge has the power to hear evidence from which factual conclusions may be made. The testimony of a witness is not a fact until the trier finds it as so. It is only for the trier to decide. The trier may accept all, some, or none of what a witness says.[1] If the witness is not believed on an issue, the evidence supporting it must be rejected. [2]

Of the evidence accepted, the trier-of-fact may associate different weights to individual parts of the evidence.[3]

The determination of guilt must not be determined on the basis of a mere credibility contest or choice of preference between witnesses.[4]

Finding of Facts Limited to Issues of Dispute

It must be remembered that when assessing evidence heard at trial, it is not the court's role to "resolve the broad factual question of what happened". The judge is only obliged to decide "whether the essential elements of the charge have been proven beyond a reasonable doubt."[5]

Editing Statements

The court does have a limited power to edit statements and other forms of evidence as part of its jurisdiction over the trial process. This is usually applied where the evidence is unduly prejudicial.[6]

  1. R v DAI, 2012 SCC 5 (CanLII), [2012] 1 SCR 149, per McLachlin CJ (6:3), at para 72
    R v Francois, 1994 CanLII 52 (SCC), [1994] 2 SCR 827, per McLachlin J (4:3), at p. 837 (or para 14)
    R v BC, 2011 ONCA 604 (CanLII), per curiam (3:0), at para 5 leave refused
    R v MR, 2010 ONCA 285 (CanLII), OJ No 15478, per curiam (3:0), at para 6
    R v DR, 1996 CanLII 207 (SCC), 107 CCC (3d) 289, per L’Heureux-Dube J (dissenting in result), at p. 318
    R v Hunter, 2000 CanLII 16964 (ON CA), [2000] OJ No 4089 (ONCA), per curiam, at para 5
    R v Abdullah, 1997 CanLII 1814 (ON CA), [1997] OJ No 2055 (CA), per Carthy and Goudge JJA, at paras 4 to 5
    R v Mathieu, 1994 CanLII 5561 (QC CA), 90 CCC (3d) 415, per Brossard JA and Fish JA, at para 61 aff’d 1995 CanLII 79 (SCC), [1995] 4 SCR 46{, per Lamer CJ, ("...triers of fact remain free, as they have always been in the past, to accept all, part or none of the evidence of any witness... . The evidence of each witness must be considered in the light of all the other evidence.")
    R v Lindsay, 2012 SKCA 33 (CanLII), 393 Sask R 9, per Jackson JA, at para 16
  2. R v Morin, 1987 CanLII 6819 (ON CA), 36 CCC (3d) 50, per Cory JA
  3. R v Howe, 2005 CanLII 253 (ON CA), 192 CCC (3d) 480, per Doherty JA (3:0), at para 44 ("A trier of fact is entitled to accept parts of a witness’s evidence and reject other parts. Similarly, the trier of fact can accord different weight to different parts of the evidence that the trier of fact has accepted.")
  4. R v Avetsyan, 2000 SCC 56 (CanLII), [2000] 2 SCR 745, per Major J (4:1), at pp. 85 to 87
  5. R v Mah, 2002 NSCA 99 (CanLII), 167 CCC (3d) 401, per Cromwell JA (3:0), at para 41
  6. R v Dubois, 1986 CanLII 4683 (ON CA), 27 CCC (3d) 325, per Morden JA (3:0)

Consequence of Findings

Reliance on Evidence

The trier-of-fact may only convict where there has been "acceptable credible evidence" that was found to be factually correct.[1] If there is "contradictory evidence" on an element of the charge the accused must be given the benefit of that doubt even if the accused evidence is rejected.[2]

No Need for Corroboration

In appropriate cases, regardless of the offence, it is reasonable to find guilt based solely on the evidence of a single witness.[3]

Stereotype and prejudice

The judge may rely on reason, common sense, life experience, and logic in assessing credibility but cannot rely on "stereotypical assumptions and "generalizations lacking in an evidentiary foundation."[4]

  1. R v Campbell, 1995 CanLII 656 (ON CA), 24 OR (3d) 537, per Finlayson JA (3:0)
  2. R v Chan, 1989 ABCA 284 (CanLII), 52 CCC (3d) 184, per curiam (3:0)
    R v CWH, 1991 CanLII 3956 (BC CA), 68 CCC (3d) 146, per Wood JA (3:0)
    R v Miller, 1991 CanLII 2704 (ON CA), 68 CCC (3d) 517, per curiam (3:0)
  3. R v AG, 2000 SCC 17 (CanLII), [2000] 1 SCR 439, per Arbour J, at pp. 453-4
    R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 SCR 811, per Dickson J (9:0), at pp. 819-820
  4. R v Pastro, 2021 BCCA 149 (CanLII), per Fitch JA, at para 52

Appellate Review

See also: Appeals

On appeal, findings of credibility cannot be interfered with unless the "assessments ... cannot be supported on any reasonable view of the evidence."[1] In giving deference, the law recognizes that the trial judge has the "benefit of the intangible impact of conducting the trial."[2]

Findings of witness credibility is strictly factual.[3]

An appellate court should not interfere with credibility assessments "except in very particular circumstances."[4]

The assessment of credibility is given considerable deference on review.[5] However, where a legal error is made in assessing credibility, there is no deference and may require intervention.[6]

Where the judge fails to give sufficient reasons to explain the findings on credibility and reliability intervention may be warranted.[7] It is essential that the judge resolve "major" or "significant" inconsistencies in testimony so that the accused understands why the judge is left without reasonable doubt.[8]

Where an essential element turns on credibility, a failure to make credibility findings may amount to a reversible error.[9]

The finding of a fact where there is no evidence to support it is reviewable as a question of law on a standard of correctness.[10] The same goes for interpreting the legal effect of a finding of fact.[11]

Finding of fact based on an irrelevant consideration is a question of law and reviewable on a standard of correctness.[12]

  1. R v Burke, 1996 CanLII 229 (SCC), [1996] 1 SCR 474, per Sopinka J(7:0), at para 7
  2. R v GF, 2021 SCC 20 (CanLII), per Karakatsanis J, at para 81
  3. R v RP, 2012 SCC 22 (CanLII), [2012] 1 SCR 746, per Deschamps J (5:2), at para 10 ("Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence”) [quotation marks removed])
  4. RP, ibid., at para 10
  5. R v DH, 2016 ONCA 569 (CanLII), 338 CCC (3d) 251, per Feldman JA, at para 34 ("A trial judge’s assessments of credibility are accorded very considerable deference on appeal, as long as the trial judge has sufficiently explained how significant discrepancies that could undermine credibility and reliability have been resolved.")
  6. R v Luceno, 2015 ONCA 759 (CanLII), 331 CCC (3d) 51, per Weiler JA (3:0), at para 34
  7. DH, supra at para 34
    R v M(A), 2014 ONCA 769 (CanLII), 123 OR (3d) 536, per curiam at paras 17 to 19
  8. DH, ibid. at para 35
  9. R v Trotter Estate, 2014 ONCA 841 (CanLII), 328 OAC 167, per Benotto JA ("Where important issues turn on credibility, failure to make credibility findings amounts to reversible error")
  10. R v JMH, 2011 SCC 45 (CanLII), [2011] 3 SCR 197, per Cromwell J (9:0), at paras 24 to 32
  11. JMH, ibid., at paras 24 to 32
  12. R v Carrano, 2011 ONSC 7718 (CanLII), OJ No 603, per Trotter J, at para 6

Credibility and Reliability

See also: Credibility and Standard of Appellate Review#Reviewing Findings of Credibility
"Credibility" vs "Reliability"

Credibility refers to the witness's ability to be "honesty or veracity". Reliability refers to a witnesses "accuracy."[1] A discreditable witness cannot be reliable. However, a credible witness may still be make an honest mistake.[2]

A credible witness can give unreliable evidence, but a non-credible witness cannot give reliable evidence.[3]

Accuracy of a witness considers their ability to (1) observe, (2) recall and (3) recount to events at issue.[4]

Findings of a Judge

A judge may believe all, some, or none of a witness's testimony.[5] Whatever is accepted may be allocated different weight to each piece of evidence.[6]

Given that witnesses are not presumed to tell the truth, the trial judge has no obligation to accept any uncontradicted evidence given by the witness.[7] In fact, uncontradicted evidence may be rejected by the judge on the basis of "reason, common sense and rationality."[8]

Findings of credibility are sometimes made simpler through objective independent evidence or corroboration.[9]

On appellate review, it is not important whether a judge makes specific findings in reference to "credibility" and "reliability". It is only necessary that the judge turn their mind to the relevant factors that go to believability.[10] Acceptance of inculpatory evidence implies an assessment of truthfulness, sincerity, and accuracy.[11]

  1. R v Sanichar, 2012 ONCA 117 (CanLII), 280 CCC (3d) 500, per Blair JA (2:1), at para 69
    R v HC, 2009 ONCA 56 (CanLII), 241 CCC (3d) 45, per Watt JA (3:0), at paras 41 to 44
    R v Slatter, 2019 ONCA 807 (CanLII), 382 CCC (3d) 245, per Pepall JA, at paras 117 to 118 ("...credibility and reliability are different concepts. Credibility deals with a witness's veracity or truthfulness, while reliability addresses the accuracy of a witness's testimony. Accuracy engages consideration of a witness's ability to accurately observe, recall, and recount...")
    R v GF, 2021 SCC 20 (CanLII), SCJ No 20, per Karakatsanis J at para 82 ("The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty")
  2. R v JVD, 2016 ONSC 4462 (CanLII), per Tzimas J, at para 92
    R v Gostick, 1999 CanLII 3125 (ON CA), [1999] OJ No 2357, per Finlayson JA, at paras 15 and 16
    R v Vickerson, 2005 CanLII 23678 (ON CA), [2005] OJ No 2798, per Weiler JA, at para 28 (ONCA)
    R v SC, 2012 CanLII 33601 (NLSCTD), [2012] NJ No 210, 324 Nfld & PEIR 19, per Stack J
  3. HC, supra, at para 41
  4. HC, supra, at para 41 ("Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately [1] observe; [2] recall; and [3] recount events in issue."
    R v Thomas, 2012 ONSC 6653 (CanLII), per Code J, at para 13 ("Reliability generally relates to the testimonial factors of perception, memory, and communication whereas credibility relates to sincerity or honesty.")
  5. R v Cunsolo, 2011 ONSC 1349 (CanLII), 277 CCC (3d) 435, per Hill J, at paras 228 to 232
    R v Francois, 1994 CanLII 52 (SCC), [1994] 2 SCR 827, per McLachlin J (4:3), at para 14
    DR et al. v The Queen, 1996 CanLII 207 (SCC), 107 CCC (3d) 289, per L'Heureux-Dubé J dissenting in result, at p. 318
    R v MR, 2010 ONCA 285 (CanLII), OJ No 15478, per curiam (3:0), at para 6
    R v Hunter, 2000 CanLII 16964 (ON CA), [2000] OJ No 4089 (CA), per curiam (3:0), at para 5
    R v Abdallah, 1997 CanLII 1814 (ON CA), [1997] OJ No 2055 (CA), per Carthy and Goudge JJA, at paras 4, 5
    R v Cook, 2010 ONSC 1188 (CanLII), per Hill J
  6. Cunsolo, supra, at para 228
    R v Howe, 2005 CanLII 253 (ON CA), [2005] OJ No 39 (CA), per Doherty JA (3:0), at para 44
  7. R v Clark, 2012 CMAC 3 (CanLII), 438 NR 366, per Watt JA, at para 41
  8. Clark, ibid., at para 41
  9. R v GF, 2021 SCC 20 (CanLII), SCJ No 20, per Karakatsanis J, at para 81
  10. GF, supra at para 82 ("appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.")
  11. GF, supra at para 82 ("A trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability")
    R v Vuradin, 2013 SCC 38 (CanLII), [2013] 2 SCR 639, per Karakatsanis J, at para 16

Analysis of Credibility

Evaluating evidence involves the assessment of a witnesses credibility and reliability. These are distinct but related concepts referring to the witness' veracity (the former) and accuracy (the latter).[1] There can be significant overlap. "Testimonial reliability" or "reliability" can often mean or include credibility.[2]

Evaluating credibility is not a scientific or intellectual process.[3]There are no hard and fast rules to apply.[4] It is not simply the application of a set of rules as much as it is "a multifactoral evaluation of the witness that includes factors such as the witness’ intelligence, demeanor, ability and capacity to observe and remember, and the intent of the witness to be truthful or deceive."[5]

It involves a "complex intermingling of impressions" based on observations in the context of "independent evidence" and "preponderance of probabilities" that are recognized as reasonable.[6]

The process can often defy verbalization, particularly where "complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events."[7]

Any case that turns on the issue of credibility between two witnesses, the main question is whether the Crown has proven the case beyond a reasonable doubt.[8] Where significant inconsistencies or contradictions exist in the complainant's evidence, the trier-of-fact must assess the evidence carefully.[9]

A failure to properly articulate the credibility concerns may amount to a reversible error.[10]

A failure to cross-examine a witness on a point that is significant to an important issue can be taken into account when evaluating credibility.[11]

Totality of Evidence

The evidence of a witness must always be assessed "in light of the totality of the evidence adduced in the proceedings."[12]

This involves considering the "whole tapestry" (or the "whole scope and nature") of the evidence.[13]

It is an error of law to evaluate reliability and credibility on the basis of individual pieces of evidence without looking at the totality of the evidence.[14]

  1. R v Morrissey, 1995 CanLII 3498 (ON CA), OR (3d) 514, per Doherty JA, at para 33
    R v NLP, 2013 ONCA 773 (CanLII), 305 CCC (3d) 105, per Lauwers JA (3:0), at para 25
  2. R v Woollam, 2012 ONSC 2188 (CanLII), 104 WCB (2d) 9, per Durno J, at paras 90 to 111 gives detailed canvassing of use of term "reliability" also referring to see R v Murray, 1997 CanLII 1090 (ON CA), 115 CCC (3d) 225, per Charron JA (3:0)
    R v Thurston, [1986] OJ No 2011 (Gen. Div.)(*no CanLII links)
    R v KTD, [2001] OJ No 2890 (SCJ)(*no CanLII links)
  3. R v Gagnon, 2006 SCC 17 (CanLII), [2006] 1 SCR 621, per Bastarache and Abella J (3:2), at paras 19 to 21
    R v Mesaros, 2014 ONSC 3445 (CanLII), OJ No 2710, per Campbell J, at para 21
    R v Wadforth, 2009 ONCA 716 (CanLII), 247 CCC (3d) 466, per Watt JA (3:0), at paras 66 to 67
  4. R v White, 1947 CanLII 1 (SCC), [1947] SCR 268
    R v SIC, 2011 ABPC 261 (CanLII), per LeGrandeur J, at para 19
  5. R v Lunz, 2013 ABQB 150 (CanLII), per Topolniski J
    White, supra, at paras 8 to 10
  6. R v JFD, 2017 BCCA 162 (CanLII), per Dickson JA (3:0), at para 38
  7. Mesaros, supra, at para 21
    See: R v Gagnon, 2006 SCC 17 (CanLII), [2006] 1 SCR 621, per Bastarache and Abella J (3:2), at para 20 (It is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:")
    R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, per Charron J (7:0), at para 26
    R v REM, 2008 SCC 51 (CanLII), [2008] 3 SCR 3, per McLachlin CJ (7:0), at para 49 ("[A]ssessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:")
    Wadforth, supra, at para 66
    R v H(W), 2013 SCC 22 (CanLII), [2013] 2 SCR 180, per Cromwell J (7:0), at paras 39 to 40
  8. R v Wylie, 2012 ONSC 1077 (CanLII), [2012] OJ No 1220 (S.C.J), per Hill J
    R v Selles, 1997 CanLII 1150 (ON CA), 101 OAC 193 (CA), per Finlayson JA (3:0), at pp. 207-8
    R v NM, 1994 CanLII 1549 (ON CA), [1994] OJ No 1715 (CA), per curiam (3:0), at para 1
  9. Wylie, supra, at para 84
  10. R v Braich, 2002 SCC 27 (CanLII), [2002] 1 SCR 903, per Binnie J (7:0), at para 23
  11. R v Carter, 2005 BCCA 381 (CanLII), 199 CCC (3d) 74, per Thackray JA (3:0)
    R v Paris, 2000 CanLII 17031 (ON CA), 150 CCC (3d) 162, per Doherty JA (3:0)
  12. R v Clark, 2012 CMAC 3 (CanLII), 438 NR 366, per Watt JA, at para 40}
  13. R v Cameron, 2017 ABQB 217 (CanLII), per Jeffrey J, at para 28
    Faryna v Chorny, 1951 CanLII 252 (BC CA), {{{4}}}, per O'Halloran JA ("The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which is a practical and informed person would readily recognize as reasonable in that place and in those conditions.")
  14. R v JMH, 2009 ONCA 834 (CanLII), 249 CCC (3d) 140, per Watt JA (3:0) – Judge incorrectly acquitted the accused on the basis that a poem of the sexual salt victim referencing doubt amounted to doubt on non-consent

Disbelief vs Fabrication

There is a distinction between the disbelief of a witness and a conclusion of fabrication.[1]

A disbelieved alibi has no evidentiary value.[2] However, an alibi found to be fabricating can be evidence on which an inference of guilt may be made.[3]

Likewise, a disbelieved exculpatory statement has no value while a fabricated statement can be used in evidence.[4] The judge should consider the content of the statement and its connection with the charge.[5]

A finding of fabrication cannot be inferred simply on a finding of disbelief.[6] Fabrication must be found "on evidence that is independent from the evidence that contradicts or discredits the accused’s version of events."[7] The circumstance under which the disbelieved evidence was given is not "independent evidence" permitting an adverse inference.[8]

Direct evidence of fabrication, however, does not need to be confirmed or independently proven.[9]

This evidence includes the circumstances where an accused made a disbelieved out-of-court statement, such that it suggests the accused's intent to mislead or deflect suspicion and shows a conscious knowledge that he committed an offence.[10]

Rejecting Defence Evidence

A considered and reasoned acceptance of the Crown evidence beyond a reasonable doubt on points of conflicting evidence may be sufficient to constitute an explanation to reject defence evidence.[11]

Jury Instructions

There is a "real danger" that a jury, faced with an argument seeking that they disbelieve the exculpatory explanation of the accused, will infer guilt, especially where the exculpatory version was heard for the first time at trial.[12]

  1. R v Wright, 2017 ONCA 560 (CanLII), 354 CCC (3d) 377, per Simmons JA, at para 38
  2. R v Snelson, 2013 BCCA 550 (CanLII), per Bennett JA (3:0), at paras 23 to 32 - no need for instructions on adverse inference on rejected alibi
    R v O’Connor, 2002 CanLII 3540 (ON CA), OR (3d) 263, per O'Connor ACJ (3:0), at para 38 (statement that "is merely disbelieved is not evidence that strengthens the Crown’s case")
  3. R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J (7:2), at paras 57 to 58
    R v Coutts, 1998 CanLII 4212 (ON CA), 126 CCC (3d) 545, per Doherty JA (3:0), at paras 15 to 16
    O’Connor, supra (3:0), at para 17
  4. R v Nedelcu, 2012 SCC 59 (CanLII), [2012] 3 SCR 311, per Moldaver J (6:3), at para 23 ("rejection of an accused's testimony does not create evidence for the Crown")
    Snelson, supra, at para 27
  5. O'Connor, supra, at para 18
  6. R v Cyr, 2012 ONCA 919 (CanLII), 294 CCC (3d) 421, per Watt JA (3:0), at para 78
  7. Cyr, ibid., at para 78
    O'Connor, supra, at para 21
    Coutts, supra, at paras 15 to 16
  8. O'Connor, supra, at para 23 ("...when it is an accused's testimony which is disbelieved, the circumstance in which the accused gave the disbelieved version of events -- as part of the trial process itself -- is not considered to be independent evidence of fabrication permitting an adverse inference against the accused:... Before an adverse inference may be drawn, there must be evidence capable of showing fabrication apart from both the evidence contradicting the accused's testimony and the fact that the accused is found to have testified falsely at the trial.")
  9. R v Pollock, 2004 CanLII 16082 (ON CA), 188 OAC 37, 187 CCC (3d) 213, per Rosenberg JA, at para 155, (“[t]here is no requirement, however, that the evidence of fabrication must itself be confirmed or independently proved.”)
  10. Cyr, supra, at para 79
    O'Connor, supra, at paras 24, 26
  11. R v TM, 2014 ONCA 854 (CanLII), 318 CCC (3d) 153, per Laskin JA (3:0), at para 68
    R v JA, 2010 ONCA 491 (CanLII), 261 CCC (3d) 125, per MacPherson JA (2:1), at paras 22 to 23
    R v M, 2017 ONSC 5537 (CanLII), per Roger J, at para 30
  12. R v JS, 2018 ONCA 39 (CanLII), 140 OR (3d) 539, per Roberts JA (3:0), at para 63
    R v Oland, 2016 NBCA 58 (CanLII), NBJ No 288, per Drapeau CJ (3:0), at paras 66 to 69

Analyzing Reliability

Reliability is a particular concern in situations such as:[1]

  • witnesses are very young,
  • where they testify about distant historical events,
  • where their accounts are inconsistent or contradictory,
  • where their accounts are unsupported by any other reliable evidence,
  • where their observations are not recorded contemporaneously,
  • where they have a poor opportunity to observe, or
  • where some other shortcoming relevant to perception, memory, or
  • communication may exist.
  1. R v Thomas, 2012 ONSC 6653 (CanLII), per Code J, at para 13

Factors in Evaluating Credibility and Reliability

There are many tools for assessing the credibility and reliability of a witness' testimony.[1]

  1. e.g. see list in R v Jacquot, 2010 NSPC 13 (CanLII), 914 APR 203, per Tax J, at para 40
    Bake v Aboud, 2017 NSSC 42 (CanLII), per Fogeron J, at para 13 R v Comer, 2006 NSSC 217 (CanLII), per Cacchione J, at para 96
    R v Snow, 2006 ABPC 92 (CanLII), AJ No 530, per Semenuk J, at para 70
    R v McKay, 2011 ABPC 82 (CanLII), per Anderson J, at para 14
    R v Abdirashid, 2012 ABPC 22 (CanLII), [2012] A.J. No 131, per Bascom J, at paras 8 to 11
    Baker-Warren v Denault, 2009 NSSC 59 (CanILI), 882 APR 271, per Forgeron J, at para 19
    Faryna v Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA), per O'Halloran JA, at paras 9, 10
    R v DFM, 2008 NSSC 312 (CanLII), per Murphy J, at para 11 citing R v Ross2006 NSPC 20(*no CanLII links) , at para 6
    R v WGL, 2020 NSSC 144 (CanLII) (working hyperlinks pending), per Roskinski J, at para 33

Character-based Assessments

General Character

A witness will be considered less reliable for personal characteristics and bakcground:

  1. prior criminal record, particularly for offences relating to honesty.
  2. prior discreditable conduct unrelated to criminal convictions.
  3. reputation in a community of untrust-worthiness
  4. evidence of relevant habits
Situational Character
  1. motive to mislead
    1. "unsavoury" witness who has a motive to avoid culpability

Credibility — Delivery

Manner of Delivery
  1. consider the manner of response, being whether the witness gave evidence that was forthright, candid, straightforward and was responsive to questions. Did the evidence flow in a logical and consistent manner or was the witness evasive, non-responsive, argumentative, or hesitant to answer (either at time of testimony or in prior statements);[1]

Credibility — Content of Testimony

Consistency with Common Sense and Experience
  1. Consider whether the testimony accords or is in "harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions". Consider whether common sense suggests that the evidence is impossible or highly improbable or whether it was reasonable and consistent with itself and with the uncontradicted facts.[2]
    1. considering whether a person's words and actions are explained and whether it matches their emotional state at the time[3]
    2. the reasonableness of a person's reaction to events
    3. evidence showing the demeanor of a complainant shortly following the offence can be useful to credibility. A person alleging a sexual assault or common assault may be quite upset when speaking to police, which may lend to credibility.[4]
    4. whether there is any embellishment or minimizing of events. Likewise, any signs of attempts at recasting evidence to suit a particular goal; putting himself in a good light,
    5. whether the witness adjusted their evidence when confronted with new evidence or simply gave different explanations for a single action.[5]
    6. whether the explanation contains an inordinate level of complexity.[6]
Content of Testimony — Inconsistences
  1. Inconsistencies
    1. Internal inconsistencies: consider the inconsistencies with previous statements or testimony at trial or other hearings.
    2. External inconsistencies: consider the contradictory and corroborative evidence between witnesses or between testimony and documentary evidence;
  2. Bias and Partiality: assess the partiality of witnesses due to kinship, hostility, self-interest, interest in the outcome, or any other motive to favour or injure the accused;
    1. Motive to Deceive

Reliability

Reliability — Observations
  1. Capacity: consider the capacity of the witness to relate their testimony:
    1. ability and opportunity to observe the factual matters that they are testifying to;
    1. ability to communicate the details of their testimony;
  1. Justifiable error: consider whether the witness, because of the turmoil surrounding the event at the time it occurred, have been easily or understandably in error as to detail, or even as to the time of the occurrence;
  2. consider the emotional state of the witness at the time (in a calm state or panicked state, for example);
  3. if recollection was recorded, consider the timing at which notes were made;
  4. consider the demeanor of the witness in the witness box (voice tone, body language, etc)
  5. Where applicable, was the witness able to give admissions against interest? Or were there signs of self-serving?
  6. inconsistencies on matter that the witness has little reason to get wrong or lie about.
Reliability — Memory and Recall
  1. ability to remember the events observed based on emotional importance to the witness of the observation at the time they were made and the . Consider as well the person's general frailties and capacity for recollection and
  2. ability to remember based based on prior recordings of their recollections. Consider the timing at which they were asked to record their recollection and the time that they were prompted of the importance of the observation
  3. amount of time that passed
  4. demonstrated insecurity when giving details
Reliability — Communication
  1. signs that the witness is not communicating observations accurately or completely.
    1. poor vocabulary and imprecise langauge
    2. admissible opinions unsupported by material details.
    3. implausible details rationally attributable to inaccurate description
  1. e.g. R v McGrath, 2014 NLCA 40 (CanLII), 356 Nfld & PEIR 252, per Rowe JA (3:0), at para 19 citing trial judge's reasons for disbelieving accused ("Her answers to other questions were often vague and evasive. When confronted by evidence that was contrary to her testimony, the accused would immediately recant and change her testimony to conform.")
  2. Faryna v Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA), per O'Halloran JA
  3. A judge is entitled to consider the emotional condition of the accused for consistency with the claimed offence:
    R v Murphy, 1976 CanLII 198 (SCC), [1977] 2 SCR 603, per Spence J, at p. 612
    See also R v Sidhu, 2004 BCCA 59 (CanLII), 183 CCC (3d) 199, at para 51
    R v Lavallee, [1993] BCJ No 669(*no CanLII links) , at paras 2, 5 and 11 (CA)
    R v Huang, [1989] BCJ No 1296 at 7 (CA)(*no CanLII links) , per Macdonald JA
    R v Dorsey, [1987] OJ No 349(*no CanLII links) , at pp. 4 (CA)
  4. R v Mete, [1998] OJ No 16 (OCJ)(*no CanLII links)
  5. e.g. McGrath, supra, at para 19
  6. e.g. McGrath, supra, at para 19

Inconsistencies

See also: Prior Inconsistent Statements

Consistencies and inconsistencies are an "important aspect" in assessing credibility.[1]

Use on Inconsistencies in Cross-examination

Cross-examining a witness on a prior inconsistent statement may only be used to go to the live issue of credibility.[2] The prior statement cannot be used for the truth of its contents unless the witness adopts the statement.[3]

It is necessary that the judge provide limiting instructions on the use of a prior inconsistent statement.[4]

Evaluation of Seriousness of Inconsistencies

Generally speaking, inconsistencies in a witnesses evidence must be evaluated before the judge can accept it.[5]

Inconsistencies on peripheral matters and not to the "essence" of the charges and so may be excused.[6]

A series of minor inconsistencies "may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence". The trier-of-fact should consider the "totality of the inconsistencies in order to assess whether the witness's evidence is reliable."[7]

The trial judge does not need to address every inconsistency. [8]

Minor Inconsistencies

Inconsistencies between witnesses regarding "peripheral matters" such as time, speed and distance, all of which are affected by subjective assessments, will usually have a limited effect on reliability unless glaringly different. Minor differences on details can in fact enhance, rather than detract, from the credibility of the witness as too much similarity will suggest collusion. [9] Such inconsistencies should be considered in the context of the witnesses age at the time of the events.[10]

The courts should be hesitant to devalue a witnesses testimony based on minor or “perceived inconsistencies”.[11] The benefit of the doubt should be given to the witness.[12]

A "series" of "minor inconsistencies" may become "quite significant" such that the trier of fact may create a reasonable doubt on the reliability of the witness.[13]

There is no "rule" that determines when minor inconsistencies collectively amount to reason to find doubt in the witnesses overall credibility.[14]

Major Inconsistencies

Where there are two equally credible witnesses there are a number of rules of thumb that can be applied:

  • the testimony must be contrasted with the undisputed facts to see which is the closer "fit."[15]
  • The judge should consider what is reasonably recallable and not recallable by the particular witness.
  • the judge should favour the witness who is in a better position to know a particular fact.[16]
  • where evidence is "incredible", there must be more undisputed facts to support this claim[17]

An inconsistency may or may not be significant depending on whether such errors in detail are "normal" and "to be expected" or, alternatively, are errors that "are "unlikely to be mistaken" and "demonstrate a carelessness with the truth or raise reliability issues."[18]

Where there are major inconsistencies or contradictions with key Crown witnesses, or where there are otherwise conflicting evidence, the trier-of-fact would be "carefully assess" the evidence before.[19]

Resolving Inconsistencies

The judge is obligated to consider all the evidence as a whole, especially where credibility is at issue.[20] However, inconsistencies of facts that are not necessary to determine the case do not need to be resolved.[21]

  1. R v CH, 1999 CanLII 18939 (NL CA), 182 Nfld. & PEIR 32, 44 WCB (2d) 162, per Wells CJ, at para 23
    R v MG, 1994 CanLII 8733 (ON CA), [1994] OJ No 2086, per Galligan JA (2:1), at para 27, appeal discontinued [1994] SCCA No 390, at para 27 ("Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness said on other occasions, whether on oath or not.")
  2. R v GH, 2020 ONCA 1 (CanLII), at para 32 ("A prior inconsistent statement can be used to cross-examine a witness. It can only be used on the issue of credibility.")
  3. GH, ibid., at para 32
  4. GH, ibid., at para 32
    Deacon v The King, 1947 CanLII 38 (SCC), [1947] SCR 531, per Kerwin J
    McInroy and Rouse v R, 1978 CanLII 175 (SCC), [1979] 1 SCR 588, per Martland J
    R v Mannion, 1986 CanLII 31 (SCC), [1986] 2 SCR 272, per McIntyre J
  5. e.g. R v Wigle, 2009 ONCA 604 (CanLII), 252 OAC 209, per Lang JA (3:0) - conviction overturned because judge failed to explain why complainant's inconsistencies did not affect credibility.
    see also CH, supra, at para 23
  6. R v Broesky, 2014 SKCA 36 (CanLII), 433 Sask R 300, per Ryan-Froslie JA (3:0), at para 3
    R v Lindsay, 2012 SKCA 33 (CanLII), 393 Sask R 9, per Jackson JA (3:0)
  7. CH, supra, at para 29
    RWB
  8. R v RS, 2014 NSCA 105 (CanLII), per Scanlan JA (3:0), at para 24
  9. ??
  10. R v DLW, 2013 BCSC 1327 (CanLII), BCJ No 1620, per Romilly J, at para 129
  11. R v AF, 2010 ONSC 5824 (CanLII), OJ No 4564, per Hill J, at para 87
    e.g. DLW, supra, at para 128
  12. R v Tran, 1994 CanLII 56 (SCC), [1994] 2 SCR 951, per Lamer CJ (7:0), at p. 248
  13. R v RWB (1993), 24 BCAC 1, 40 WAC 1 (BCCA)(*no CanLII links) at pp. 9-10 , per Rowles JA (" While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. ")
  14. RWB, ibid. ("There is no rule as to when, in the face of inconsistency, such doubt may arise, but at least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable.")
  15. R v FE, 1999 BCCA 414 (CanLII), BCAC 161, per Hollinrake JA (3:0)
    R v Ross, 2002 BCSC 445 (CanLII), BCTC 445, per Taylor J
  16. R v FJU, 1994 CanLII 1085 (ON CA), 90 CCC (3d) 541, per Osborne JA - appealed to 1995 CanLII 74 (CanLII) on different grounds
  17. R v GB, 1990 CanLII 115 (SCC), [1990] 2 SCR 57
  18. R v Smith, 2018 ABQB 199 (CanLII), per Goss J, at para 50
    R v MG, 1994 CanLII 8733 (ON CA), [1994] OJ No 2086, per Galligan JA (2:1), at paras 2327 (" But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.")
    R v AM, 2014 ONCA 769 (CanLII), 123 OR (3d) 536, per curiam (3:0), at para 12
  19. R v SW, 1994 CanLII 7208 (ON CA), OR (3d) 509, per Finlayson JA (3:0), at p. 517
    R v Oziel, 1997 CanLII 549 (ON CA), [1997] OJ No 1185 (CA), per curiam (3:0), at paras 8, 9
    R v Norman, 1993 CanLII 3387 (ON CA), 87 CCC (3d) 153, per Finlayson JA (3:0), at pp. 172-4
  20. McCabe v British Columbia (Superintendent of Motor Vehicles), 2019 BCCA 77 (CanLII), per Saunders JA
  21. e.g. R v Drydgen, 2021 BCCA 125 (CanLII), per Butler JA, at para 40

Consistencies and Corroboration

Motive and Bias

See also: Character Evidence

The judge may take into account the existence or absence of evidence of a motive to fabricate the allegation.[1] There is no onus on the accused to establish a motive to lie on the part of the complainant. [2] Do to otherwise, would have the effect of removing the presumption of innocence.

Motive is only one factor to consider when assessing credibility.[3]

The absence of motive to fabricate should not be given undue weight to suggest that the complainant is telling the truth.[4] The absence should not be considered the same as an absence of a motive to fabricate.[5] Suggesting that it is true unfairly bolsters the witness's credibility. Corrective jury instructions should be given if such a suggestion is made.[6]

Evidence establishing motive is always admissible, but it should not be mistaken for evidence that merely shows a history of incidents between parties.[7] The Crown may present evidence that suggests an absence of any motive on the part of the complainant to fabricate their story.[8] This can include presenting evidence of the relationship between complainants or between the accused and a single complainant.[9]

Proven absence of motive is "always an important fact in favour of the accused."[10]

Questions that go beyond what the witness would have known and invite speculation as to the motive is improper.[11] This includes asking the accused to explain why the complainant would make allegations against them.[12]

Where the accused theory alleges that a Crown witness lied out of self-interest, the judge may "consider that the [Crown] witness would have had no, or less, reason to be untruthful on particular points of evidence in respect of which [the accused] provided radically inconsistent testimony."[13]

It is permitted for the trial judge to conclude that the evidence of a witness is not based on actual memories but is more likely rationalizations, assumptions or believed on how they would have behaved.[14]

  1. see R v Jackson, 1995 CanLII 3506 (ON CA), [1995] OJ No 2471 (CA), per curiam (3:0)
    R v LeBrocq, 2011 ONCA 405 (CanLII), [2011] OJ No 2323, per curiam (3:0)
    R v Plews, 2010 ONSC 5653 (CanLII), 91 WCB (2d) 420, per Hill J, at para 335
    R v KGB, 1993 CanLII 116 (SCC), 79 CCC (3d) 257, per Lamer CJ, at p. 300
    R v Greer, 2009 ONCA 505 (CanLII), OJ No 2566, per curiam (3:0), at para 5
  2. R v Batte, 2000 CanLII 5750 (ON CA), OR (3d) 321, per Rosenberg JA (3:0), at paras 120 to 124
    R v Krack, 1990 CanLII 10976 (ON CA), 56 CCC (3d) 555, per Lacouriciere JA (3:0), at pp. 561-562 (CCC)
    Plews, supra, at para 335
  3. Batte, supra, at paras 120 to 124
  4. R v LL, 2009 ONCA 413 (CanLII), 244 CCC (3d) 149, per Simmons JA (3:0), at paras 40 to 42
  5. LL, ibid., at para 44 ("When dealing with the issue of a complainant’s motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. As Rowles J.A. stated in R v B. (R.W.) [citation omitted] at para. 28: “it does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth.” Put another way, the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate")
  6. see LL, ibid., at para 53
  7. R v Barbour, 1938 CanLII 29 (SCC), [1938] SCR 465, per Duff CJ, at p. 5
  8. R v AJS, 1998 CanLII 18004 (NL CA), 513 APR 183, per Steele JA
    R v TM, 2014 ONCA 854 (CanLII), 318 CCC (3d) 153, per Laskin JA (3:0), at para 40 (In a historical sex assault where credibility is at issue, "[t]he Crown was entitled to try to show the absence of a motive to fabricate, because it is a factor in the assessment of credibility.")
  9. TM, supra ("...questions that explored the nature of the relationship between the appellant and the complainants, or between the complainants themselves, were proper.")
    R v GH, 2020 ONCA 1 (CanLII), per Benotto JA, at para 25
  10. R v Lewis, 1979 CanLII 19 (SCC), [1979] 2 SCR 821, per Dickson J, at pp. 12-14
  11. GH, supra, at para 25
  12. GH, supra, at paras 25 to 28
  13. R v Laboucan, 2010 SCC 12 (CanLII), [2010] 1 SCR 397, per Charron J, at para 22
  14. R v BJT, 2000 SKQB 572 (CanLII), [2000] SJ No 801, per Baynton J, at para 19
    R v Chen, 2016 ABQB 644 (CanLII), per Michalyshyn J, at para 122
    R v JR, 2006 CanLII 22658 (ON SC), 70 WCB (2d) 85, per T Ducharme J, at paras 21 to 22

Emotional State

Evidence of emotional state "may constitute circumstantial evidence confirming that the offence occurred... including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state." [1]

Intoxication

A witness's level of intoxication will tend to reduce the amount of reliability placed upon the witnesses evidence.[2]

  1. R v Lindsay, 2005 CanLII 24240 (ON SC), [2005] OJ No 2870 (SCJ), per Fuerst J
  2. e.g. R v Crocker, 2015 CanLII 1001 (NL PC), per Gorman J

Demeanour

Credibility may be assessed from demeanour. This can include "non-verbal cues" and "body language, eyes, tone of voice, and the manner" of speaking [1] as well as "their movements, glances, hesitations, trembling, blushing, surprise or bravado."[2]

Reliability of Demeanour

A subjective view of demeanour can be unreliable indicator of accuracy.[3] It should only be considered "with caution."[4]

The conduct and behaviour of a witness in court should not be given too much weight.[5]

A judge should not decide matters of credibility on the strength of demeanour evidence alone as it would be too "dangerous."[6]

Demeanour can be affected by factors including "culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom."[7]

It should be recognized that witnesses are testifying in a foreign environment and are often nervous and are feeling significant pressure, especially when undergoing prolonged cross-examination.[8]

A Judge should consider how "unfamiliar and stressful" a courtroom is when testifying which may affect demeanour. It would follow then to consider some sort of "baseline" on how they react in stressful situations.[9]

Decision Exclusively on Demeanour

A decision on credibility based solely or predominantly on the demeanour of a witness is an error.[10]

Demeanour evidence alone is not always considered a proper manner of assessing credibility.[11]

Demeanour by itself cannot be sufficient alone to make a conclusion on credibility or conviction, especially where there are "significant and unexplained inconsistencies in the evidence.[12]

Demeanour Outside of Witness Box

A court may only take "modest reliance" on demeanour evidence when the witness is not in the witness box.[13] The use of this demeanour evidence to make significant findings of credibility against the accused is a reversible error.[14] The risks associated with misinterpreting demeanour is even stronger when they are simply sitting in the courtroom.[15]

Outbursts

Emotional outbursts while testifying are relevant to the assessment of the witness, including evidence of animus against the accused. Prejudicial utterances may require a mid-trial jury instruction.[16]

  1. R v NS , 2010 ONCA 670 (CanLII), (2010) 102 OR (3d) 161, per Doherty JA, at paras 55, 57
  2. Laurentide motels ltd. v Beauport (City), 1989 CanLII 81 (SCC), [1989] 1 SCR 705, per L'Heureux-Dube J
  3. Law Society of Upper Canada v Neinstein, 2010 ONCA 193 (CanLII), 99 OR (3d) 1, per Doherty JA, at para 66
    R v Smith, 2010 ONCA 229 (CanLII), 260 OAC 180, per Sharpe JA (3:0), at para 11
    R v GG, 1997 CanLII 1976 (ON CA), 115 CCC (3d) 1, per Finlayson JA (2:1), at pp. 6-8
    R v P.-P.(S.H.), 2003 NSCA 53 (CanLII), 176 CCC (3d) 281, per Hamilton JA, at paras 28 to 30
    R v Levert, 2001 CanLII 8606 (ON CA), 159 CCC (3d) 71, per Rosenberg JA (3:0), at pp. 80-2
    R v Norman, 1993 CanLII 3387 (ON CA), (1993) 16 OR (3d) 295, per Finlayson JA, at para 55
  4. R v WJM, 2018 NSCA 54 (CanLII), per Beveridge JA, at para 45
    R v Ramos, 2020 MBCA 111 (CanLII), MJ No 266, at para 113 ("...in assessing credibility, caution should be exercised in reliance on demeanour evidence; undue weight should not be placed on it.")
  5. R v Jeng, 2004 BCCA 464 (CanLII), BCJ No 1884, per Ryan JA, at para 54
  6. R v JAA, 2011 SCC 17 (CanLII), [2011] 1 SCR 628, per Charron J (5:2), at para 14 (“it would be dangerous for this Court to uphold the convictions and thus resolve the credibility issue in this case on the strength of demeanour evidence, or on the basis that one party’s version was less plausible than the other’s.”)
    WJM, supra, at para 45 ("It is not infallible and should not be used as the sole determinant of credibility.")
  7. R v Dyce, 2017 ONCA 123 (CanLII), per Juriansz JA, at para 12
    R v Rhayel, 2015 ONCA 377 (CanLII), 324 CCC (3d) 362, per Epstein JA, at para 85 ("It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.")
  8. R v Shields, 2017 BCPC 395 (CanLII), BCJ No 2608, per Doherty J, at para 74
    R v DTO, 2018 BCPC 120 (CanLII), per MacCarthy J, at para 125
  9. R v TM, 2014 ONCA 854 (CanLII), 318 CCC (3d) 153, per Laskin JA (3:0), per Laskin JA, at para 64
  10. e.g. R v JF, 2003 CanLII 52166 (ON CA), 177 CCC (3d) 1, per Feldman JA, at para 101
    R v Norman, 1993 CanLII 3387 (ON CA), 87 CCC (3d) 153, per Finlayson JA (3:0) at 173
    R v Gostick, 1999 CanLII 3125 (ON CA), 137 CCC (3d) 53, per Finlayson JA (3:0) at 59-61
    R v KA, 1999 CanLII 3756 (ON CA), 137 CCC (3d) 554, per Rosenberg JA (3:0), at para 44
    R v Bourgeois, 2017 ABCA 32 (CanLII), 345 CCC (3d) 439, per curiam (2:1), at para 21 (it is error of law "when a trial judge’s assessment of the witness’s demeanour becomes the sole or dominant basis for determining credibility, and where the trial judge appears to be unaware of the risks associated with over-reliance on demeanour") aff’d 2017 SCC 49 R v Ramos, 2020 MBCA 111 (CanLII), MJ No 266, per Mainella JA, at para 113
  11. e.g. R v Penney, 2002 NFCA 24 (CanLII), [2002] NJ No 98 (NLCA), per Wells CJ, at para 61
  12. see R v WS, 1994 CanLII 7208 (ON CA), 90 CCC (3d) 242, per Finlayson JA (3:0), at p. 250
    Faryna v Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA), per O'Halloran JA, at p. 357 ("The real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those conditions")
  13. TM, supra, at para 69
  14. R v NM, 1994 CanLII 1549 (ON CA), [1994] OJ No 1715 (CA), per curiam (3:0), at para 58
  15. TM, ibid., at para 64
  16. R v IW, 2022 ONCA 251 (CanLII), per George JA

Embellishment or Minimization

A judge may take into account the presence or absence of embellishment or minimization in their testimony.[1]

Observing the witness's "candour" due to the absence of these elements can be validly observed as reason not to diminish credibility.[2] However, it is impermissible to reason that because the allegation could have been worse, that makes it more likely to be true.[3]

  1. R v GD, 2021 ONCA 414 (CanLII), per curiam
  2. e.g. GD, ibid.
  3. GD, ibid., at para 16

Intuition

There is some support for the proposition that judges may rely upon their intuition to determine the credibility of a witness. A judge will often invoke their appreciation that the witness has a "ring of truth."[1]

Common Sense and Plausibility

It would be dangerous to uphold a conviction "on the basis that one party's version was less plausible than the other's" alone.[1] That is not to say that common sense and plausibility are not useful tools in evaluating evidence. Triers-of-fact are permitted to reject a witnesses evidence, including that of the accused, on the basis that it does not accord with "collective human understanding of the behaviour" of a person in the shoes of the alleged victim.[2]

It is said that "[h]uman nature, common sense and life's experience are indispensable when assessing credibility."[3]

There is no prohibition to use common-sense and human experience to identify and draw inferences from the evidence.[4]

It is impermissible and speculative to invoke common-sense assumptions not grounded in evidence or supported by judicial notice.[5] Common-sense and experience should not be used to "introduce new considerations, not arising from the evidence, into the decision-making process.[6] This rule however does not bar the judge from applying the judge's experience with human behaviour to interpret evidence.[7]

Accepted Common Experiences

There are certain general observations founded in common experiences that judges may rely upon, including:[8]

  • observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;
  • a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility;
  • it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events; and
  • a child caught up in a conflict between his father and his father’s partner is likely to have conflicting loyalties and a judge should be cautious of accepting the child’s recollection, recounted several years later, about events that may not have been particularly significant to the child at the time.
Stereotypes

Findings of fact and assessment of credibility cannot rely on stereotypical inferences of human behaviour or "prejudicial generalizations". It would be an error of law to do so.[9]

The prohibition against stereotypical inferences does not prevent the judge from using otherwise relevant evidence that could support a stereotype.[10]

  1. R v JAA, 2011 SCC 17 (CanLII), [2011] 1 SCR 628, 268 CCC (3d) 135, per Charron J (5:2), at para 14 (“it would be dangerous for this Court to uphold the convictions and thus resolve the credibility issue in this case on the strength of demeanour evidence, or on the basis that one party’s version was less plausible than the other’s.”)
  2. R v Kontzamanis, 2011 BCCA 184 (CanLII), per Kirkpatrick JA (3:0), at para 38
  3. R v DDS, 2006 NSCA 34 (CanLII), 207 CCC (3d) 319, per Saunder JA
  4. R v JC, 2021 ONCA 131 (CanLII), 401 CCC (3d) 433, per Paciocco JA, at paras 59 to 60
  5. JC, supra, at para 58 ("judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice")
  6. JC, supra, at para 61
  7. JC, supra, at para 61
  8. R v GMC, 2022 ONCA 2 (CanLII), per Strathy CJ, at para 38
  9. JC, supra, at para 63 ("factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour ... it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility ... It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act") and para 65
  10. JC, supra, at paras 68 to 70

Observations Made in Court

A judge should not reject the defence evidence based solely on observations of the witness' build to infer his capacity.[1]

  1. R v Gyimah, 2010 ONSC 4055 (CanLII), per Healey J, judge wrongly rejected defence evidence of difficulty in moving a mattress because the accused "looked fit"

Evidence of Collusion or Tainting

Evidence that the witness was influenced by others would be reason to give no weight to their evidence.

Collusion

There is no requirement that the judge must make an actual finding that collusion occurred in order to discount the evidence of a witness. In some circumstances it is open to the judge to rely upon an "opportunity to collude."[1] However, a witness should generally not be entirely discredited merely on the basis of opportunity.[2]

Collusion can be unintentional such as where multiple individuals watch the same news story and are influenced by the single story.[3]

Tainting of Evidence

The independence of a person's recollection can be compromised by being exposed to other persons statements.[4]

A witness who sat in on the preliminary inquiry evidence before giving a statement to police can be reason to find there is no credibility in their evidence.[5]

  1. R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J (7:2)
    R v Burke, 1996 CanLII 229 (SCC), [1996] 1 SCR 474, 105 CCC (3d) 205, per Sopinka J (7:0), at para 45
  2. e.g. R v Almasi, 2016 ONSC 2943 (CanLII), per Goldstein J, at paras 47 to 51 - witness evidence incorrectly dismissed simply because it matched another witness believed to be lying
  3. R v Dorsey, 2012 ONCA 185 (CanLII), 288 CCC (3d) 62, per MacPherson JA
  4. Eg. R v Burton, 2017 NSSC 3 (CanLII), per Arnold J, at para 40
  5. e.g. R v Corbett, 2015 ONSC 1633 (CanLII), per Hambly J, at para 10

Special Types of Testimony

Judges must be careful to avoid falling into an analysis that compares the two versions without assessing "the whole evidence to establish proof of guilt beyond a reasonable doubt."[1]

The trier of fact should not place much weight on exculpatory stories in the absence of evidence supporting the theory.[2]

A judge must not subject an accused's testimony to more scrutiny than that of the complainant.[3] The judge must apply an "even and equal level of careful analysis."[4]

There are special considerations when assessing credibility in a Charter voir dire.[5]

Silence of Non-Accused

A witness who remains silent to police to avoid incriminating himself but later testifies at trial to incriminating matters should not have their evidence rejected because they acted "sensible" by remaining silent.[6]

No Presumptions For or Against Truthfulness or Accuracy

There is no legal presumption that those testifying in criminal trials are telling the truth or that they are testifying accurately.[7]

There is no rules that says that the trier of fact has to believe or disbelieve any part of a witnesses testimony.[8]

  1. R v Ogden, 2011 NSCA 89 (CanLII), per Saunders JA (3:0), at para 10
    R v WH, 2011 NLCA 59 (CanLII), 278 CCC (3d) 237, per Barry JA
  2. R v Jenner, 2005 MBCA 44 (CanLII), 195 CCC (3d), per Monnin JA (3:0), at para 21
  3. R v Costache, 2013 ONSC 4447 (CanLII), OJ No 3038, per Campbell J, at para 34
  4. Costache, ibid., at para 34
  5. See: R v Gunsch, 2013 ABPC 104 (CanLII), per Rosborough J, at paras 27 to 37
  6. R v Yang, 2023 ONCA 526 (CanLII), per curiam
  7. R v Luciano, 2011 ONCA 89 (CanLII), 267 CCC (3d) 16, per Watt JA (3:0)
    R v Thain, 2009 ONCA 223 (CanLII), 243 CCC (3d) 230, per Sharpe JA (3:0), at para 32
    R v Downey, 2013 NSCA 101 (CanLII), per Farrar JA (3:0), at paras 15 to 20
  8. Novak Estate (Re), 2008 NSSC 283 (CanLII), 860 APR 84, at para 37 ("There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence")


Credibility of Accused (The W.D. Test)

The WD Test which concerns analysis of the accused testifying, has application outside of merely the accused testifying but also on any evidence called by the defence that conflicts with the Crown evidence on a "vital" issue.[1]

Assessing An Accused Cautioned Statement to Police

Where the Crown adduces the accused's statement to police as part of it case, the Court must assess that evidence which addresses a "vital issue" in the same manner as if the accused testified himself.[2]

  1. R v M, 2017 ONSC 5537 (CanLII), per Roger J, at para 29 ("The W.(D.) analysis applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case.")
    R v BD, 2011 ONCA 51 (CanLII), 266 CCC (3d) 197, per Blair JA (3:0), at para 114 ("What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.")
    R v Morningstar, 2017 NBCA 39 (CanLII), per Larlee JA (3:0)
  2. R v Castelein and Berthelette, 2017 MBQB 173 (CanLII), per Greenberg J, at para 13 ("In deciding whether the Crown has met its burden, I must consider Mr. Berthelette’s exculpatory statement in the same manner as I would had he testified")
    BD, supra, at para 114 ("What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. ")

Credibility of the Complainant or Victim

Credibility of Persons from Other Cultures

Assessing Interpreter Evidence

Assessing credibility through an interpreter requires careful consideration as it is recognized as a much more difficult endeavour.[1]

Courts should not put too much weight on perceived inconsistencies where evidence is conveyed through a interpreter.[2]

  1. Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25
    R v Singh, 2016 ONSC 3688 (CanLII), per Hill J
    R v Tran, 1994 CanLII 56 (SCC), [1994] 2 SCR 951, per Lamer CJ (7:0), at p. 248 (court suggests that testifying through interpreter should have “benefit of the doubt” with respect to inconsistencies)
    R v X(J), 2012 ABCA 69 (CanLII), 524 AR 123, per curiam (3:0), at para 13 ("Some confusion …[is] inevitable" and can result in a record that is “is often unclear”)
    R v Zewari, 2005 CanLII 16078 (ON CA), [2005] OJ No 1953 (CA), per curiam (3:0), at para 4 (trial judge properly averted to difficulty in evaluating credibility when an interpreter is required)
    Serrurier v City of Ottawa, 1983 CanLII 1628 (ON CA), , 42 OR (2d) 321 (CA), per Grange JA (3:0), at pp. 322-23 (“Cross examination becomes more difficult, and often less effective, when each question and answer must be interpreted”)
    J.H. Wigmore, Evidence in Trials at Common Law (Chadbourn Rev.) (Toronto: Little Brown and Co., 1979), Vol. 3, §811 (quoting: “ARTHUR TRAIN, The Prisoner at the Bar 239 (1908) … It is also practically impossible to cross-examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply”)
  2. Tran, supra, at p. 987 ("the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness")
    JX, supra, at para 13
    R v Zewari, 2005 CanLII 16078 (ON CA), [2005] OJ No 1953 (CA), per curiam (3:0), at para 4
    NAFF v Minister of Immigration (2004), 221 C.L.R. 1 (H.C. Aust.), at para 30
    Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25 ("It is much more difficult to assess the credibility of evidence given through an interpreter")

Credibility of Children

Adults Testifying to Events Occurring When a Child

Adults testifying to events that occurred while they were a child should be assessed using standard factors for adult witnesses.[1] However, the evidence should be considered in the context of the age of the witness. Minor inconsistencies should be considered in light of the witnesses age at the time.[2]

Common sense should be applied to the level of "exactitude and detail" which may be missing from a child's world perspective.[3]

  1. R v DLW, 2013 BCSC 1327 (CanLII), BCJ No 1620, per Romilly J, at para 131
  2. DLW, ibid., at para 131
    R v RW, 1992 CanLII 56 (SCC), [1992] 2 SCR 122, per McLachlin J (6:0)
    R v Cuthbert, 1996 CanLII 8341 (BC CA), 106 CCC (3d) 28, per Lambert JA (2:1), at para 23
  3. R v Plews, 2010 ONSC 5653 (CanLII), 91 WCB (2d) 420, per Hill J, at para 329
    R v Curtis, 2000 BCCA 618 (CanLII), per Hall JA, at 9 paras 8, 9{{{3}}}

Credibility of Police Officers

It is not proper for courts to take the evidence of a police officer over that of a civilian by virtue of their position.

Police Notes

See also: Disclosure#Collection of Evidence

Police notes are no longer simply an aide-memoire simply used to refresh an officer's memory. Officers have an "inherent duty" to take notes.[1]

Without notes an officer's credibility can be diminished and his evidence can be discounted.[2]

Police notes must be independent and contemporaneous. [3] This is essential to the reliability and integrity of the officer's notes.[4] Notes are only for the purpose of assisting the officer in testifying at trial.[5] Without notes the evidence of the officer can be "sketchy at best" and will be unreliable. There must be indication that the notes are the officer's independent recollection. An officer should not be using someone else's notes to refresh their memory or else they will simply be reciting hearsay.[6]

As a general rule in an investigation involving multiple officers, notes should not be made after a collective debriefing.[7]

The absence of note taking can go to the reliability of the officer's testimony.[8] Where an officer is experienced they should be in the practice of taking notes of all relevant observations.

An officer is expected to take notes of all significant aspects of their investigation. Proper note taking is an important part of the fact-finding, as evidence should not be left to the whim of memory.[9]

It is not an acceptable excuse to not have notes where the officer “would remember it”.[10] Where notes are not taken the court is allowed to conclude that observation evidence was in fact not observed but a belief created after the investigation.[11] This is not necessarily always the case however and the judge may still accept the evidence.[12]

Memory of a police officer for things that occurred a considerably long time in the past where no notes were taken will has diminished reliability.[13]

The effect of an absence of notes will vary from case-to-case.[14]

Inferences from failing to take notes

Failure to take proper notes on observations of impairment allows a judge to find that there were insufficient evidence to form reasonable and probable grounds.[15]

The failure to take notes permits--but does not require--the drawing of the inference that the events testified to did not happen.[16]

What types of inferences can be drawn from the failure to take notes will depend on factors such as:[17]

  • Whether the significance of the event that was not noted would have been apparent at the time the notes were made.
  • Whether notes were made of other similar events.
  • The police officer’s level of experience.
  • The explanation, if any, for why notes were not made.
  • Whether notes of the event were made by other officers involved in the same investigation.
  1. R v Odgers, 2009 ONCJ 287 (CanLII), [2009] OJ No 2592, per Fournier J, at para 16
  2. Odgers, ibid., at para 16
  3. Schaeffer v Wood, 2011 ONCA 716 (CanLII), 107 OR (3d) 721, per Sharpe JA (3:0), at paras 69 to 70 on appeal to SCC
  4. Schaeffer v Wood, ibid.
  5. Schaeffer v Wood, ibid.
  6. Schaeffer v Wood, ibid.
  7. R v Thompson, 2013 ONSC 1527 (CanLII), [2013] OJ No 1236 (Sup. Ct.), per Hill J, at para 212 ("[W]here multiple officers participate in investigation of an incident, their notes should be made independently and not as a collective and not after a (de)briefing where the incident is discussed as a group.")
  8. R v Tang, 2011 ONCJ 525 (CanLII), per Reinhardt J, at para 53 -- police officer evidence entirely ignored due to poor notes
    R v Odgers, 2009 ONCJ 287 (CanLII), OJ No 2592, per Fournier J
    R v Machado, 2010 ONSC 277 (CanLII), 92 MVR (5th) 58, per Durno J at 120-123
  9. R v Lozanovski, 2005 ONCJ 112 (CanLII), [2005] OCJ 112, per Feldman J, at p. 3
  10. R v Zack (1999) OJ No 5747 (ONCJ)(*no CanLII links) , at p. 2
    R v Khan, 2006 OJ 2717(*no CanLII links) at 18
  11. Zack, supra, at p. 2
  12. e.g. R v Thompson, 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339, per Morden JA (3:0)
    R v Bennett, 2005 OJ No 4035 (ONCJ) (*no CanLII links)
  13. Khan, supra, at paras 17 to 18
    R v Hayes, 2005 OJ No 5057(*no CanLII links) at 9
    R v McGee, 2012 ONCJ 63 (CanLII), 92 CR (6th) 96, per Grossman J, at para 66
  14. R v Noureddine, 2014 ONCJ 537 (CanLII), [2014] OJ No 1397 (OCJ), per Selkirk J, at paras 12 to 17
  15. R v Bero, 2014 ONCJ 444 (CanLII), per Cooper J
  16. see Wood v. Schaeffer, supra R v Singh, 2015 ONCJ 643 (CanLII), per Schreck J, at para 34
    R v Antoniak, 2007 CanLII 53233 (ON SC), [2007] O.J. No. 4816, per Garton J, at paras 21 to 25
    R v Golubentsev, 2007 ONCJ 568 (CanLII), 55 CR (6th) 170, per Duncan J, at para 30
  17. Singh, supra, at para 34

Credibility for Other Types of Witnesses

Expert evidence may be admitted to establish the effect that the "code of silence" will have upon a witness including a reluctance to testify or a prior inconsistent statement.[1]

When assessing expert evidence, the jury is entitled to accept or reject any part of the testimony and determine how much waits to be given just as it is permitted for lay witness evidence.[2]

  1. e.g. R v Boswell, 2011 ONCA 283 (CanLII), 277 CCC (3d) 156, per Cronk JA (3:0)
  2. R v Smithers, 1977 CanLII 7 (SCC), [1978] 1 SCR 506, per Dickson J at p. 518 (SCR)

Related Topics

See Also