Credibility

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2017. (Rev. # 95864)

Introduction

See also: Analyzing Testimony

Credibility refers to the trustworthiness of a witness based on their veracity, sincerity and accuracy.[1]

Credibility evidence comprises evidence admitted for the purposes of strengthening or weakening the testimony of a witness or an accused. Credibility evidence that is used to impeach a witness can be submitted at any point from the time the witness takes the stand. The rule is that a witness always puts their credibility at issue whenever they testify and so it is open to attack. Evidence that bolsters a witness's credibility, however, is not admittable until the credibility of that witness has been impeached.

Whenever testimony is given the trier of fact must determine whether the testimony is to be believed. There is no presumption of honesty among witnesses in a criminal trial[2]

There are several approaches to determining credibility. One school of thought believes that credibility is determined primarily by demeanour and conduct in trial.[3] Another approach says that demeanour and conduct are too subjective,[4] and so the best approach is to consider the consistency of testimony when compared to reliable facts.[5]

Consideration can also include:[6]

  • ability and opportunity to observe events,
  • the firmness of his memory,
  • the ability to resist the influence of interest to modify his recollection,
  • whether the witness’ evidence harmonizes with independent evidence that has been accepted,
  • whether the witness changes his testimony during direct and cross-examination,
  • whether the witness’ testimony seems unreasonable, impossible, or unlikely,
  • whether a witness has a motive to lie, and
  • the demeanour of a witness generally.

As a whole, credibility is a consideration of whether the evidence is "consistent with the probabilities affecting the case as a whole and shown to be in existence at the time."[7]

One recommended approach would follow the formula:[8]

  1. consider the testimony on a "stand alone" basis and whether it is "inherently believable";
  2. if satisfied, consider the evidence's consistency with other witnesses and documentary evidence. Special consideration should be on those witnesses who are independent;
  3. finally, the court should consider which version of events is most consistent with the "preponderance of probabilities which a practical and informed person would readily recognize as reasonable".
Standard of Appellate Review

Findings of credibility are afforded a high degree of deference.[9] This is on account that the trial judge is in a far superior position to assess it.[10]

That being said a material error of law will not be afforded deference, including a assessment on impermissible stereotypical reasoning.[11] A review alleging judge maked an error of law by applying a "stricter standard of scrutiny than the evidence of the Crown" as it relates to evaluating credibility.[12] However, this route of appeal is not be to be used as a "veiled invitation to reassess the trial judge’s credibility determinations."[13]

  1. ↑ R v Raymond v Bosanquet, 1919 CanLII 11, (1919) 59 SCR 452, per Davies CJ, at p. 460
    Bradshaw v Stenner, 2010 BCSC 1398 (CanLII), per MacNaughton J, at para 186
    see discussion on credibility and reliability in R v C(H), 2009 ONCA 56 (CanLII), 241 CCC (3d) 45, per Watt JA (3:0), at para 41
  2. ↑ R v Thain, 2009 ONCA 223 (CanLII), 243 CCC (3d) 230, per Sharpe JA (3:0), at para 32
  3. ↑ Raymond v Bosanquet, supra
    R v White, 1947 CanLII 1 (SCC), [1947] SCR 268, at p. 272 (SCR)
  4. ↑ Tatarchuk v Sidor (1951), 1 WWR (N.S.) 435 at 448(*no CanLII links)
    R v RP, 1994 CanLII 6250 (QCCA), 94 CCC (3d) 571, per curiam
    R v Norman, 1993 CanLII 3387, 16 OR (3d) 295, per Finlayson JA
    R v Marzan (1982), 18 Man. R. (2d) 240(*no CanLII links) , at p. 246 (MR)
    R v Neary, 2000 NFCA 22 (CanLII), 566 APR 142, per O’Neill JA, at para 27
    R v Oldford, 2001 NFCA 34 (CanLII), 608 APR 142, per Gushue JA, at para 75
  5. ↑ Faryna v Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354, per O'Halloran JA at 357 ("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 a practical and informed person would readily recognize as reasonable in that place and in those conditions.")
    Whitehouse v Reimer, 1980 ABCA 214 (CanLII), 116 DLR (3d) 594, per Laycraft JA (3:0) at 595
  6. ↑ Bradshaw, supra, at para 186
  7. ↑ Bradshaw, supra, at para 186 ("Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time.")
  8. ↑ Bradshaw, supra, at para 187
  9. ↑ R v Aird, 2013 ONCA 447 (CanLII), 307 OAC 183, per Laskin JA (3:0), at para 39
    R v Marshall, 2015 ONCA 692 (CanLII), 340 OAC 201, per Cronk JA (3:0)
  10. ↑ R v Howe (sub nom J.H.), 2005 CanLII 253 (ON CA), [2005] OJ No 39 (CA), per Doherty JA (3:0), at para 46
  11. ↑ R v DR, 2022 NLCA 2 (CanLII), per Hoegg JA (2:1), at para 61, upheld at 2022 SCC 50 (CanLII)
    R v ARJD, 2018 SCC 6 (CanLII), [2018] 1 SCR 218, per Wagner CJ, at para 2
    R v JMH, 2011 SCC 45, [2011] 3 SCR 197, per Cromwell J, at para 29
  12. ↑ R v RL, 2016 ONCA 455 (CanLII), per Strathy CJ (3:0), at para 46
    Howe, supra
    R v TT, 2009 ONCA 613 (CanLII), 68 CR (6th) 1, per Blair JA, at paras 28 and 31
  13. ↑ Aird, supra, at para 39

Oath-helping

See also: Prior Consistent Statements

It is generally prohibited to adduce any evidence for the sole purpose of bolstering or increasing a witnesses credibility, suggesting they are more likely to be telling truth. Evidence that is adduced for another reason and also has the effect of bolstering credibility can be permitted. The judge must balance the probative value of the evidence against the prejudicial effect.[1] The common law prohibits oath-helping. This rule prohibits evidence that is solely adduced to bolster the witnesses' credibility.[2] Reasons for adducing oath-helping evidence includes showing corroboration with other extrinsic evidence and narrative.

Evidence that is admissible for one purpose and has the tendency to be oath-helping will generally be admitted subject to "appropriate steps to limit the oath-helping nature of the evidence" such as by providing a jury caution.[3]

Exceptions

There are two exceptions where oath-helping is permitted. First, it does not apply when the accused testifies. In those circumstances, the accused has "wide latitude" to present oath-helping and character evidence.[4] Second, oath-helping is permitted to bolster the credibility of a witness whose credibility has been attacked. The scope however is limited.[5]

Examples

The Crown cannot introduce evidence showing that their witness has testified in court previously resulting in convictions.[6]

The Defence cannot adduce evidence establishing that the accused passed a polygraph test.[7]

  1. ↑ R v Llorenz, 2000 CanLII 5745 (ON CA), 145 CCC (3d) 535, per O'Connor JA
    R v Tash, 2013 ONCA 380 (CanLII), 306 OAC 173, per Watt JA, at paras 39, 42-43
    R v Santhosh, 2016 ONCA 731 (CanLII), 342 CCC (3d) 41, per Juriansz JA, at paras 37 to 38
  2. ↑ Santhosh, supra, at para 33
    R v B(FF), 1993 CanLII 167 (SCC), [1993] 1 SCR 697, per Iacobucci J, at p. 729 ("The rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness’ credibility before that witness’ credibility is attacked. This type of evidence is of the sort that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements.")
  3. ↑ Santhosh, supra, at para 34
    R v Mallory, 2007 ONCA 46 (CanLII), 220 OAC 239, at para 280
  4. ↑ Santhosh, supra at para 36
    R v Clarke, 1998 CanLII 14604 (ON CA), 129 CCC (3d) 1, at para 20
  5. ↑ Santhosh, supra at para 37
    R v Tash, 2013 ONCA 380 (CanLII), OJ No. 2642, per Watt JA at paras 42 to 43
  6. ↑ R v Mallory, 2007 ONCA 46 (CanLII), 217 CCC (3d) 266, per curiam
  7. ↑ R v Thorne, 1988 CanLII 7109 (NS CA), 82 NSR (2d) 442 (S.C.A.D.), per Macdonald JA
    R v Bedgood, 1990 CanLII 2491 (NS CA), NSR (2d) 426, per Chipman JA

Failure to Call Witnesses

See also: Inferences

In certain circumstances, adverse inferences may be made from a party's failure to call a witness.[1] Any inference should be made from "ordinary logic and experience" and only where there is "plausible reason for nonproduction."[2]

There are many circumstances where there is reason not to call a witness that is unrelated to honesty, such as due to overlap with other witnesses, poor demeanor, or limited relevancy.[3] However, a negative inference is more likely drawn where the witness is able to provide "missing proof" that would be important to the case.[4]

It is dangerous to draw an adverse inference from the failure of the accused to call evidence.[5] A judge should only draw an adverse inference be done "with the greatest of caution."[6]

  1. ↑ R v Lapensee, 2009 ONCA 646 (CanLII), 247 CCC (3d) 21, per O'Connor ACJ, at para 41
    R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 25
  2. ↑ Lapensee, supra
  3. ↑ Lapensee, supra
  4. ↑ Lapensee, supra
  5. ↑ R v Ruiz, 1991 CanLII 2410 (NB CA), 68 CCC (3d) 500, per Angers JA, at p. 505 (dissenting, but not on this point), aff’d on other grounds 1993 CanLII 84 (SCC), [1993] 3 SCR 649, per La Forest J
  6. ↑ R v Charette, 1982 CanLII 3738 (ON CA), 67 CCC (2d) 357, per Goodman JA, at p. 359
    See also R v Zehr, 1980 CanLII 2964 (ON CA), 54 CCC (2d) 65, per Brooke JA (3:0), at p. 68
    R v Koffman and Hirschler, 1985 CanLII 3640 (ON CA), 20 CCC (3d) 232, per Martin JA (3:0), at p. 237
    R v Dupuis, 1995 CanLII 1543 (ON CA), 98 CCC (3d) 496, per Osborne JA, at p. 508
    R v Witter, 1996 CanLII 4005 (ON CA), 105 CCC (3d) 44, per Doherty JA, at p. 55
    R v Marshall, 2005 CanLII 30051 (ON CA), OR (3d) 81, per Borins JA, at para 47

Accused's Failure to Testify

See also: Right Against Self-Crimination#Accused's Choice Not to Testify

Topics

See Also

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