4.11 Assessing Testimony
- (Last revised June 2018)
(In sexual assault cases)
I now want to caution you against approaching the evidence with unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction. My purpose in telling you this is not to support a particular conclusion but to caution you against reaching conclusions based on common misconceptions.
You must approach the trial with an open mind and without preconceived ideas. At the end of the trial, you must make your decision based solely on the evidence and in accordance with my instructions on the law.
-  Next, I want to speak to you about assessing a witness’s testimony. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none, or all of the evidence given by a witness. You must ask yourself whether the witness is truthful and whether the witness is reliable.
Here are a few questions to consider during your discussions.
-  Did the witness have a good opportunity to observe the event that he or she described? How long was the witness watching or listening? Did anything interfere with the witness’s ability to observe? Was there anything else happening at the same time that might have distracted the witness?
 Did the witness have a good memory? Keep in mind the length of time that has passed since the date of the alleged offence. Was there something specific that helped the witness remember the details of the event that he or she described? Was there something unusual or memorable about the event so that you would expect the witness to remember the details, or was the event relatively unimportant at the time, so the witness might easily have forgotten or been mistaken about some of the details? Was any inability or difficulty that the witness had in remembering events genuine, or was the witness’s memory selective in order to avoid answering questions?
-  Was the witness able to communicate clearly and accurately?
-  What was the witness’s manner when he or she testified? Do not jump to conclusions, however, based entirely on the witness’s manner. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different intellects, abilities, values, and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or the most important factor in your decision.
-  Was the witness forthright and responsive to questions, or was the witness evasive, hesitant, or argumentative?
-  Did the witness give his or her testimony fairly, or was it tainted by self-interest or bias? Does the evidence disclose any reason why the witness might tend to favour the Crown or (NOA)?
-  Was the witness’s testimony consistent with the testimony of other witnesses? As you know, people hear and see things differently. This means we should not be surprised to find discrepancies in their testimony. Minor discrepancies are often unimportant, but you may attach greater importance to more significant discrepancies.
-  Are there any inconsistencies in the witness’s own testimony? If so, do these inconsistencies make the testimony more or less believable and reliable? Are the inconsistencies about something important, or minor details? Could they be honest mistakes? Could they be deliberate lies? Are there any explanations for them? Do the explanations make sense?
-  You must not decide an issue simply by counting which side has more witnesses. You may decide that the testimony of fewer witnesses is more reliable than the evidence of a larger number. It is the force of the evidence that counts, not the number of witnesses.
-  Consider these questions in the context of the whole of the evidence. Use your common sense to decide how much weight or importance you wish to give to the testimony of the witnesses.
 Some judges prefer not to mention the factors that appear in question form in  –  in their Preliminary Instructions. For those who prefer this approach, para.  may be read, omitting the last sentence.
 See R v D.D., 2000 SCC 43, at para. 65.
Further instruction on the question of misleading stereotypes may be necessary depending upon the evidence presented in trial. See R v Barton, 2017 ABCA 216, at paras 159-162: “[i]n dealing with evidence that risks jurors relying on discredited myths and stereotypical thinking in cases involving sexual offences, it is often insufficient to simply instruct the jury on the letter of the law. What is missing and what is required to ensure that the law is properly understood and applied is an explanation of the underlying myths the law is designed to overcome. . . Thus, it falls to the trial judge to provide, when appropriate, more than a generic caution to the jury regarding the potential for reliance on improper myths and stereotypes.”