Difference between revisions of "Analyzing Testimony"

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; Reliability of Demeanour
 
; Reliability of Demeanour
However, a subjective view of demeanour can be unreliable indicator of accuracy.<ref>
+
A subjective view of demeanour can be unreliable indicator of accuracy.<ref>
 
''Law Society of Upper Canada v Neinstein'', [http://canlii.ca/t/28llv 2010 ONCA 193] (CanLII), 99 O.R. (3d) 1 (C.A.){{perONCA|Doherty JA}}{{at|66}}<br>
 
''Law Society of Upper Canada v Neinstein'', [http://canlii.ca/t/28llv 2010 ONCA 193] (CanLII), 99 O.R. (3d) 1 (C.A.){{perONCA|Doherty JA}}{{at|66}}<br>
 
''R v Smith'', [http://canlii.ca/t/28z6f 2010 ONCA 229] (CanLII){{perONCA|Sharpe JA}} (3:0){{at|11}}<br>  
 
''R v Smith'', [http://canlii.ca/t/28z6f 2010 ONCA 229] (CanLII){{perONCA|Sharpe JA}} (3:0){{at|11}}<br>  
Line 477: Line 477:
 
''R v P.-P.(S.H.)'', [http://canlii.ca/t/1x69z 2003 NSCA 53] (CanLII), (2003), 176 CCC (3d) 281 (NSCA){{perNSCA|Hamilton JA}}{{Ats|28-30}}<br>  
 
''R v P.-P.(S.H.)'', [http://canlii.ca/t/1x69z 2003 NSCA 53] (CanLII), (2003), 176 CCC (3d) 281 (NSCA){{perNSCA|Hamilton JA}}{{Ats|28-30}}<br>  
 
''R v Levert'', [http://canlii.ca/t/1f8w8 2001 CanLII 8606] (ON CA), (2001), 159 CCC (3d) 71 (Ont. C.A.){{perONCA|Rosenberg JA}} (3:0){{atps|80-2}}<br>
 
''R v Levert'', [http://canlii.ca/t/1f8w8 2001 CanLII 8606] (ON CA), (2001), 159 CCC (3d) 71 (Ont. C.A.){{perONCA|Rosenberg JA}} (3:0){{atps|80-2}}<br>
 +
''R v Norman'' (1993) 16 O.R. (3d) 295 (Ont.C.A.){{fix}}
 
</ref>  
 
</ref>  
It should be considered "with caution".<ref>
+
It should only be considered "with caution".<ref>
 
''R v WJM'', [http://canlii.ca/t/hsmn5 2018 NSCA 54] (CanLII){{perNSCA|Beveridge JA}}{{at|45}}
 
''R v WJM'', [http://canlii.ca/t/hsmn5 2018 NSCA 54] (CanLII){{perNSCA|Beveridge JA}}{{at|45}}
 +
</ref>
 +
 +
The conduct and behaviour of a witness in court should not be given too much weight.<ref>
 +
''R v Jeng'', [http://canlii.ca/t/1hsfw 2004 BCCA 464] (CanLII){{perBCCA|Ryan JA}}{{at|54}}<br>
 
</ref>
 
</ref>
  
Line 487: Line 492:
 
</ref>
 
</ref>
  
The conduct and behaviour of a witness in court should not be given too much weight.<ref>
+
Demeanour can be affected by factors including "culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom".<ref>
''R v Jeng'', [http://canlii.ca/t/1hsfw 2004 BCCA 464] (CanLII){{perBCCA|Ryan JA}}{{at|54}}<br>
+
''R v Dyce'', [http://canlii.ca/t/gxgpx 2017 ONCA 123] (CanLII){{fix}}{{at|12}}<br>
 +
''R v Rhayel'', [http://canlii.ca/t/gj55b 2015 ONCA 377] (CanLII){{perONCA|Epstein JA}}{{at|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.")<br>
 
</ref>
 
</ref>
  

Revision as of 19:25, 8 July 2019

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]

  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), per Feldman JA (2:1), at para 43 - appealed on other grouds 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 (C.A.), per Frankel JA (2:1), at para 88
    R v Menow, 2013 MBCA 72 (CanLII), 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), 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)
    R v Avetsyan, 2000 SCC 56 (CanLII), (2000), 149 CCC (3d) 77 (SCC), per Major J (4:1), at paras 18-22
    R v JR, 2014 QCCA 869 (CanLII), [2014] Q.J. No. 3957 (C.A.), 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), per Cromwell JA (3:0), at paras 23-25
  8. Chittick, ibid., at paras 23-25
  9. R v MDR, 2015 ONCA 323 (CanLII), per curiam (3:0)
    R v Fleig, 2014 ABCA 97 (CanLII), 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), 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.”)

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), per curiam (3:0), at para 6
    R v DR, 1996 CanLII 207 (SCC), 107 CCC (3d) 289 (SCC), per L’Heureux-Dube J (dissenting in result), at p. 318
    R v Hunter, [2000] OJ No 4089 (ONCA), 2000 CanLII 16964 (ON CA), per curiam, at para 5
    R v Abdullah, 1997 CanLII 1814 (ON CA), [1997] OJ No 2055 (C.A.), per Carthy and Goudge JJA, at paras 4 to 5
    R v Mathieu (1994), 1994 CanLII 5561 (QC CA), 90 CCC (3d) 415 (Que. C.A.), 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.")
  2. R v Morin, (1987), 36 CCC (3d) 50, per Cory JA
  3. R v Howe, 2005 CanLII 253 (ON CA), (2005), 192 CCC (3d) 480 (Ont. C.A.), per Doherty JA (3:0), at para 44
  4. R v Avetsyan, 2000 SCC 56 (CanLII)(link pending), at pp. 85 to 87
  5. R v Mah, 2002 NSCA 99 (CanLII), per Cromwell JA (3:0), at para 41
  6. R v Dubois, (1986), 27 CCC (3d) 325 (ONCA), 1986 CanLII 4683 (ON CA), 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]

  1. R v Campbell, 1995 CanLII 656 (ON C.A.), per Finlayson JA (3:0)
  2. R v Chan, 1989 ABCA 284 (CanLII), per curiam (3:0)
    R v CWH, 1991 CanLII 3956 (BC C.A.), per Wood JA (3:0)
    R v Miller, 1991 CanLII 2704 (ON C.A.), 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

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]

An appellate court should not interfere with credibility assessments "except in very particular circumstances".[2]

Where a legal error is made in assessing credibility, there is no deference and may require intervention.[3]

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.[4] The same goes for interpreting the legal effect of a finding of fact.[5]

Finding of fact based on an irrelevant consideration is a question of law and reviewable on a standard of correctness.[6]

  1. R v Burke, 1996 CanLII 229 (SCC), per Sopinka J(7:0), at para 7
  2. R v RP, 2012 SCC 22 (CanLII), per Deschamps J (5:2), at para 10
  3. R v Luceno, 2015 ONCA 759 (CanLII), per Weiler JA (3:0), at para 34
  4. R v JMH, 2011 SCC 45 (CanLII), per Cromwell J (9:0), at paras 24 to 32
  5. JMH, ibid., at paras 24 to 32
  6. R v Carrano, 2011 ONSC 7718 (CanLII), 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]

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

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

  1. R v Sanichar, 2012 ONCA 117 (CanLII), 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 41-44
  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 (NL SCTD), [2012] N.J. No. 210, 324 Nfld & P.E.I.R. 19, per Stack J
  3. HC, supra, at para 41
  4. HC, supra, at para 41
  5. R v Cunsolo, 2011 ONSC 1349 (CanLII), 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), (1996), 107 CCC (3d) 289 (SCC), per L'Heureux-Dubé J dissenting in result, at p. 318
    R v MR, 2010 ONCA 285 (CanLII), per curiam (3:0), at para 6
    R v Hunter, 2000 CanLII 16964 (ON CA), [2000] OJ No 4089 (C.A.), per curiam (3:0), at para 5
    R v Abdallah, 1997 CanLII 1814 (ON CA), [1997] OJ No 2055 (C.A.), per Carthy and Goudge JJA{Ats|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 (C.A.), per Doherty JA (3:0), at para 44
  7. R v Clark, 2012 CMAC 3 (CanLII), per Watt JA, at para 41
  8. Clark, ibid., at para 41

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), (1995), 22 O.R. (3d) 514, per Doherty JA, at para 33
    R v NLP, 2013 ONCA 773 (CanLII), per Lauwers JA (3:0), at para 25
  2. R v Woollam, 2012 ONSC 2188 (CanLII), per Durno J, at paras 90-111 gives detailed canvassing of use of term "reliability" also referring to see R v Murray, 1997 CanLII 1090 (ON CA), (1997), 115 CCC (3d) 225 (Ont.C.A.), per Charron JA (3:0)
    R v Thurston, [1986] OJ No 2011 (Gen. Div.)(*no CanLII links)
    R v KTD, [2001] OJ No 2890 (S.C.J.)(*no CanLII links)
  3. R v Gagnon, 2006 SCC 17 (CanLII), per Bastarache and Abella J (3:2), at paras 19 to 21
    R v Mesaros, 2014 ONSC 3445 (CanLII), per Campbell J, at para 21
    R v Wadforth, 2009 ONCA 716 (CanLII), per Watt JA (3:0), at paras 66 to 67
  4. R v White, [1947] SCR 268, 1947 CanLII 1 (SCC)
    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 8‑10
  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
    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
    Wadforth, supra, at para 66
    R v H(W), 2013 SCC 22 (CanLII), [2013] 2 SCR 180, per Cromwell J (7:0), at paras 39-40
  8. R v Wylie, 2012 ONSC 1077 (CanLII), [2012] OJ No 1220 (S.C.J), per Hill J
    R v Selles (1997), 1997 CanLII 1150 (ON CA), 101 O.A.C. 193 (C.A.), per Finlayson JA (3:0), at pp. 207-8
    R v NM, [1994] OJ No 1715 (C.A.), 1994 CanLII 1549 (ON CA), per curiam (3:0), at para 1
  9. Wylie, supra, at para 84
  10. R v Braich, 2002 SCC 27 (CanLII), per Binnie J (7:0), at para 23
  11. R v Carter, 2005 BCCA 381 (CanLII), per Thackray JA (3:0)
    R v Paris, 2000 CanLII 17031 (ON CA), 150 CCC (3d) 162 (Ont. C.A.), per Doherty JA (3:0)
  12. Clark, supra, 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), 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), 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.

A disbelieved alibi has no evidentiary value.[1] However, an alibi found to be fabricating can be evidence on which an inference of guilt may be made.[2]

Likewise, a disbelieved exculpatory statement has no value while a fabricated statement can be used in evidence.[3] The judge should consider the content of the statement and its connection with the charge.[4]

A finding of fabrication cannot be inferred simply on a finding of disbelief.[5] Fabrication must be found "on evidence that is independent from the evidence that contradicts or discredits the accused’s version of events".[6] The circumstance under which the disbelieved evidence was given is not "independent evidence" permitting an adverse inference.[7]

Direct evidence of fabrication, however, does not need to be confirmed or independently proven.[8]

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.[9]

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.[10]

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.[11]

  1. 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
  2. R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J (7:2), at paras 57-58
    R v Coutts, 1998 CanLII 4212 (ON CA), (1998), 126 CCC (3d) 545 (Ont. C.A.), per Doherty JA (3:0), at paras 15-16
    R v O’Connor, 2002 CanLII 3540 (ON CA), (2002), 62 O.R. (3d) 263 (C.A.), per O'Connor ACJ (3:0), at para 17
  3. R v Nedelcu, 2012 SCC 59 (CanLII), 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
  4. O'Connor, supra, at para 18
  5. R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA (3:0), at para 78
  6. Cyr, ibid., at para 78
    O'Connor, supra, at para 21
    Coutts, supra, at paras 15-16
  7. 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.")
  8. R v Pollock (2004), 2004 CanLII 16082 (ON CA), 188 O.A.C. 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.”)
  9. Cyr, supra, at para 79
    O'Connor, supra, at paras 24, 26
  10. 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 22-23
    R v M, 2017 ONSC 5537 (CanLII), per Roger J, at para 30
  11. R v JS, 2018 ONCA 39 (CanLII), per Roberts JA (3:0), at para 63
    R v Oland, 2016 NBCA 58 (CanLII), per Drapeau CJ (3:0), at paras 66 to 69

Factors in Evaluating Credibility and Reliability

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

  1. Inconsistencies
    1. Internal inconsistencies: consider the inconsistencies with previous statements or testimony at trial.
    2. External inconsistencies: consider the contradictory and corroborative evidence between witnesses;
  2. Bias and Partiality: assess the partiality of witnesses due to kinship, hostility, self-interest, or any other motive to favour or injure the accused;
  3. Capacity: consider the capacity of the witness to relate their testimony:
    1. ability and opportunity to observe,
    2. ability to remember and
    3. ability to communicate the details of their testimony;
  4. 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;
  5. consider the emotional state of the witness at the time (in a calm state or panicked state, for example);
  6. if recollection was recorded, consider the timing at which notes where made;
  7. consider the demeanor of the witness in the witness box (voice tone, body language, etc)
  8. consider the manner of response, being whether the witness was forthright and responsive to questions or was the witness evasive, non-responsive, argumentative, or hesitant to answer (either at time of testimony or in prior statements);[2]
  9. 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.
    1. considering whether a persons' 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, an 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]
  1. e.g. see list in R v Jacquot, 2010 NSPC 13 (CanLII), per Tax J, at para 40
    R v Comer, 2006 NSSC 217 (CanLII), per Cacchione J, at para 96
    R v Snow, 2006 ABPC 92 (CanLII), 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 (CanLII), 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 Ross, 2006 NSPC 20(*no CanLII links) , at para 6
  2. e.g. R v McGraph, 2014 NLCA 40 (CanLII), 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.")
  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, [1977] 2 SCR 603, per Spence J, at p. 612
    See also R v Sidhu, 2004 BCCA 59 (CanLII), 183 CCC (3d) 199{{At|51}
    R v Lavallee, [1993] BCJ No. 669(*no CanLII links) , at paras 2, 5 and 11 (C.A.)
    R v Huang, [1989] BCJ No 1296 at 7 (C.A.)(*no CanLII links) , per Macdonald JA
    R v Dorsey, [1987] OJ No 349(*no CanLII links) at 4-5 (C.A.)
  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]

Generally speaking, inconsistencies in a witnesses evidence must be evaluated before the judge can accept it.[2]

Inconsistencies on peripheral matters and not to the "essence" of the charges and so may be excused.[3]

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".[4]

The trial judge does not need to address every inconsistency. [5]

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. [6] Such inconsistencies should be considered in the context of the witnesses age at the time of the events.[7]

The courts should be hesitant to devalue a witnesses testimony based on minor or “perceived inconsistencies”.[8] The benefit of the doubt should be given to the witness.[9]

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.[10]

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".[11]
  • 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.[12]
  • where evidence is "incredible", there must be more undisputed facts to support this claim[13]

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".[14]

Where there are major inconsistencies or contradictions with with key crown witnesses, or where there are otherwise conflicting evidence, the trier-of-fact would be "carefully assess" the evidence before.[15]

  1. R v CH, 1999 CanLII 18939 (NL CA), 182 Nfld. & PEIR 32, 44 W.C.B. (2d) 162 (Nfld. C.A.), per Wells CJ, at para 23
    R v MG (1994), 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. e.g. R v Wigle, 2009 ONCA 604 (CanLII), 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
  3. R v Broesky, 2014 SKCA 36 (CanLII), per Ryan-Froslie JA (3:0), at para 3
    R v Lindsay, 2012 SKCA 33 (CanLII), per Jackson JA (3:0)
  4. CH, supra, at para 29
  5. R v RS, 2014 NSCA 105 (CanLII), per Scanlan JA (3:0), at para 24
  6. ??
  7. R v DLW, 2013 BCSC 1327 (CanLII), per Romilly J, at para 129
  8. R v AF, 2010 ONSC 5824 (CanLII), per Hill J, at para 87
    e.g. DLW, supra, at para 128
  9. R v Tran, 1994 CanLII 56 (SCC), per Lamer CJ (7:0), at p. 248
  10. R v RWB (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260(complete citation pending) (" 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. ")
  11. R v FE, 1999 BCCA 414 (CanLII), (1999), 126 BCAC 161, per Hollinrake JA (3:0)
    R v Ross, 2002 BCSC 445 (CanLII), per Taylor J
  12. R v FJU, 1994 CanLII 1085 (ON C.A.), per Osborne JA - appealed to 1995 CanLII 74 (CanLII) on different grounds
  13. R v GB, 1990 CanLII 115 (SCC), [1990] 2 SCR 57
  14. R v Smith, 2018 ABQB 199 (CanLII), per Goss J, at para 50
    R v MG (1994), 1994 CanLII 8733 (ON CA), [1994] OJ No 2086, per Galligan JA (2:1), at para 23, at para 27 (" 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), per curiam (3:0), at para 12
  15. R v SW, 1994 CanLII 7208 (ON CA), (1994), 18 O.R. (3d) 509 (C.A.), per Finlayson JA (3:0), at p. 517
    R v Oziel, 1997 CanLII 549 (ON CA), [1997] OJ No 1185 (C.A.), per curiam (3:0){Ats|8, 9}}
    R v Norman, 1993 CanLII 3387 (ON CA), (1993), 87 CCC (3d) 153 (Ont. C.A.), per Finlayson JA (3:0), at pp. 172-4

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] Suggesting that it is true unfairly bolster's the witness's credibility. Corrective jury instructions should be given if such a suggestion is made.[5]

Evidence establishing motive is always admissible, but it should not be mistaken for evidence that merely shows a history of incidents between parties.[6] The Crown may present evidence that suggests an absence of any motive on the part of the complainant to fabricate their story.[7]

Proven absence of motive is "always an important fact in favour of the accused".[8]

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".[9]

It is permitted for the trial judge to conclude that the evidence of a witness are not based on actual memories but are more likely rationalizations, assumptions or believed on how they would have behaved.[10]

  1. see R v Jackson, 1995 CanLII 3506 (ON CA), [1995] OJ No 2471 (C.A.), 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), per Hill J, at para 335
    R v KGB, 1993 CanLII 116 (SCC), 79 CCC (3d) 257 (SCC), per Lamer CJ, at p. 300
    R v Greer, 2009 ONCA 505 (CanLII), per curiam (3:0), at para 5
  2. R v Batte, 2000 CanLII 5750 (ON CA), (2000), 49 O.R. (3d) 321 (C.A.), per Rosenberg JA (3:0), at paras 120-124
    R v Krack, (1990), 56 CCC (3d) 555, 1990 CanLII 10976 (ONCA), per Lacouriciere JA (3:0), at pp. 561-562 (CCC)
    Plews, supra, at para 335
  3. Batte, supra, at paras 120-124
  4. R v LL, 2009 ONCA 413 (CanLII), per Simmons JA (3:0), at paras 40 to 42
  5. see LL, ibid., at para 53
  6. R v Barbour, [1938] SCR 465, 1938 CanLII 29 (SCC), per Duff CJ, at p. 5
  7. R v AJS, 1998 CanLII 18004 (NL CA), per Steele JA
  8. R v Lewis, [1979] 2 SCR 821, 1979 CanLII 19 (SCC), per Dickson J, at pp. 12-14
  9. R v Laboucan, [2010] 1 SCR 397, 2010 SCC 12 (CanLII), per Charron J, at para 22
  10. R v BJT, [2000] SJ No 801, 2000 SKQB 572 (CanLII), 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), 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 witnesses 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 (S.C.J.), 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 on 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 reverseable error.[14] The risks associated with misinterpreting demeanour is even stronger when they are simply sitting in the courtroom.[15]

  1. R v NS (2010) 102 OR (3d) 161 (CA), 2010 ONCA 670 (CanLII), 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 O.R. (3d) 1 (C.A.), per Doherty JA, at para 66
    R v Smith, 2010 ONCA 229 (CanLII), per Sharpe JA (3:0), at para 11
    R v GG, 1997 CanLII 1976 (ON CA), (1997), 115 CCC (3d) 1 (Ont. C.A.), per Finlayson JA (2:1), at pp. 6-8
    R v P.-P.(S.H.), 2003 NSCA 53 (CanLII), (2003), 176 CCC (3d) 281 (NSCA), per Hamilton JA, at paras 28-30
    R v Levert, 2001 CanLII 8606 (ON CA), (2001), 159 CCC (3d) 71 (Ont. C.A.), per Rosenberg JA (3:0), at pp. 80-2
    R v Norman (1993) 16 O.R. (3d) 295 (Ont.C.A.)(complete citation pending)
  4. R v WJM, 2018 NSCA 54 (CanLII), per Beveridge JA, at para 45
  5. R v Jeng, 2004 BCCA 464 (CanLII), 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)(complete citation pending), at para 12
    R v Rhayel, 2015 ONCA 377 (CanLII), 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), 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), per Laskin JA, at para 64
  10. e.g. R v JF, 2003 CanLII 52166 (ON CA), (2003), 177 CCC (3d) 1, per Feldman JA, at para 101
    R v Norman, 1993 CanLII 3387 (ON CA), (1993), 87 CCC (3d) 153, per Finlayson JA (3:0) at 173
    R v Gostick, 1999 CanLII 3125 (ON CA), (1999), 137 CCC (3d) 53, per Finlayson JA (3:0) at 59-61
    R v KA, 1999 CanLII 3756 (ON CA), (1999), 137 CCC (3d) 554 (Ont. C.A.), per Rosenberg JA (3:0), at para 44
  11. e.g. R v Penney, 2002 NFCA 24 (CanLII), [2002] N.J. No. 98 (N.L.C.A.), per Wells CJ, at para 61
  12. see R v WS, 1994 CanLII 7208 (ON CA), (1994), 90 CCC (3d) 242 (Ont. C.A.), per Finlayson JA (3:0), at p. 250
    Faryna v Chorny, [1952] 2 DLR 354 (BCCA), 1951 CanLII 252 (BC CA), 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. NM, supra, at para 58
  15. TM, ibid., at para 64

Intuition

There is some support for the proposition that judge 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]

  1. R v Mervyn, 2003 YKTC 34 (CanLII), per Lilles J
    R v Roble, 2004 CanLII 23106 (ON CA), per curiam

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]

  1. 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.”)
  2. R v Kontzamanis, 2011 BCCA 184 (CanLII), per Kirkpatrick JA (3:0), at para 38
  3. R v DDS, 2006 NSCA 34 (CanLII), per Saunder JA

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] 3 SCR 33, 2002 SCC 58 (CanLII), per Binnie J (7:2)
    R v Burke, 1996 CanLII 229 (SCC), [1996] 1 SCR 474, 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 evidnece incorrectly dismissed simply because it matched another witness believed to be lying
  3. R v Dorsey, 2012 ONCA 185 (CanLII), 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

Judge's must be very careful to avoid falling into an analysis which 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 absence of evidence supporting the theory.[2]

A judge must not subject an accused's testimony 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 no a Charter voir dire.[5]

No Presumptions for Truthfulness or Accuracy

There is no legal presumption that those testifying in criminal trials are telling the truth or that they are testifying accurately.[6]

  1. R v Ogden, 2011 NSCA 89 (CanLII), per Saunders JA (3:0), at para 10
    R v WH, 2011 NLCA 59 (CanLII), per Barry JA
  2. R v Jenner, 2005 MBCA 44 (CanLII), (2005), 195 CCC (3d), per Monnin JA (3:0), at para 21
  3. R v Costache, 2013 ONSC 4447 (CanLII), 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 ‑ 37
  6. R v Luciano, 2011 ONCA 89 (CanLII), per Watt JA (3:0)
    R v Thain, 2009 ONCA 223 (CanLII), per Sharpe JA (3:0), at para 32
    R v Downey, 2013 NSCA 101 (CanLII), per Farrar JA (3:0), at paras 15-20


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), 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")
    R v BD, 2011 ONCA 51 (CanLII), 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. ")

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), 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 (C.A.), 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), 1983 CanLII 1628 (ON CA), 42 O.R. (2d) 321 (C.A.), 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")
    R v JX, 2012 ABCA 69 (CanLII), per curiam (3:0), at para 13
    R v Zewari, 2005 CanLII 16078 (ON CA), [2005] OJ No 1953 (C.A.), 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), 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), per Lambert JA (2:1), at para 23
  3. R v Plews, 2010 ONSC 5653 (CanLII), per Hill J, at para 329
    R v Curtis, 2000 BCCA 618 (CanLII), per Hall JA, at paras 8, 9

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]

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]

  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), (2011), 107 O.R. (3d) 721, per Sharpe JA (3:0), at paras 69-70 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), per Fournier J
    R v Machado, 2010 ONSC 277 (CanLII), 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{atp|2}}
  12. e.g. R v Thompson, 2001 CanLII 24186 (ON CA), per Morden JA (3:0)
    R v Bennett, 2005 OJ No 4035 (ONCJ) (*no CanLII links)
  13. Khan (2006), O.J. 2717(*no CanLII links) , at paras 17 to 18
    R v Hayes, 2005 OJ No 5057(*no CanLII links) at 9
    R v McGee, 2012 ONCJ 63 (CanLII), per Grossman J, at para 66
  14. R v Noureddine, [2014] OJ No 1397 (OCJ), 2014 ONCJ 537 (CanLII), per Selkirk J, at paras 12 to 17
  15. R v Bero, 2014 ONCJ 444 (CanLII), per Cooper J

Credibility of the Complainant or Victim

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]

  1. e.g. R v Boswell, 2011 ONCA 283 (CanLII), per Cronk JA (3:0)

Related Topics

See Also