Credibility: Difference between revisions

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There are several approaches to determining credibility. One school of thought believes that credibility is determined primarily by ''demeanour and conduct'' in trial.<ReF>
There are several approaches to determining credibility. One school of thought believes that credibility is determined primarily by ''demeanour and conduct'' in trial.<ReF>
Raymond v Bosanquet{{supra}}<br>
Raymond v Bosanquet{{supra}}<br>
R v White, [http://canlii.ca/t/1nmzl 1947 CanLII 1] (SCC), [1947] SCR 268{{Plurality}} at 272
''R v White'', [http://canlii.ca/t/1nmzl 1947 CanLII 1] (SCC), [1947] SCR 268{{Plurality}} at 272
</ref> Another approach says that demeanour and conduct are too subjective,<ref>
</ref> Another approach says that demeanour and conduct are too subjective,<ref>
Tatarchuk v Sidor (1951), 1 W.W.R. (N.S.) 435 at 448 (Alta. C.A.){{NOCANLII}} <br>
Tatarchuk v Sidor (1951), 1 W.W.R. (N.S.) 435 at 448 (Alta. C.A.){{NOCANLII}} <br>
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R v Norman [http://canlii.ca/t/1npp6 1993 CanLII 3387], (1993), 16 O.R. (3d) 295 (C.A.) (ONCA){{perONCA|Finlayson JA}}<br>
R v Norman [http://canlii.ca/t/1npp6 1993 CanLII 3387], (1993), 16 O.R. (3d) 295 (C.A.) (ONCA){{perONCA|Finlayson JA}}<br>
R v Marzan (1982), 18 Man. R. (2d) 240{{NOCANLII}} at 246<br>
R v Marzan (1982), 18 Man. R. (2d) 240{{NOCANLII}} at 246<br>
R v Neary, [http://canlii.ca/t/1nc68 2000 NFCA 22] (CanLII){{perNLCA|O’Neill JA}} at para 27<br>
''R v Neary'', [http://canlii.ca/t/1nc68 2000 NFCA 22] (CanLII){{perNLCA|O’Neill JA}} at para 27<br>
R v Oldford, [http://canlii.ca/t/1nk4j 2001 NFCA 34] (CanLII){{perNLCA|Gushue JA}} at para 75<br>
''R v Oldford'', [http://canlii.ca/t/1nk4j 2001 NFCA 34] (CanLII){{perNLCA|Gushue JA}} at para 75<br>
</ref>
</ref>
and so the best approach is to consider the ''consistency''  of testimony when compared to reliable facts.<ref>
and so the best approach is to consider the ''consistency''  of testimony when compared to reliable facts.<ref>
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==Oath-helping==
==Oath-helping==
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.<ref>
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.<ref>
R v Llorenz, [http://canlii.ca/t/1fb75 2000 CanLII 5745] (ON CA){{perONCA|O'Connor JA}}<br>
''R v Llorenz'', [http://canlii.ca/t/1fb75 2000 CanLII 5745] (ON CA){{perONCA|O'Connor JA}}<br>
</ref>  
</ref>  
Reasons for adducing oath-helping evidence includes showing corroboration with other extrinsic evidence and narrative.
Reasons for adducing oath-helping evidence includes showing corroboration with other extrinsic evidence and narrative.


The Crown cannot introduce evidence showing that their witness has testified in court previously resulting in convictions.<Ref>
The Crown cannot introduce evidence showing that their witness has testified in court previously resulting in convictions.<Ref>
R v Mallory, [http://canlii.ca/t/1qbmx 2007 ONCA 46] (CanLII){{TheCourtONCA}}<br>
''R v Mallory'', [http://canlii.ca/t/1qbmx 2007 ONCA 46] (CanLII){{TheCourtONCA}}<br>
</ref>
</ref>


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In certain circumstances, adverse inferences may be made from a party's failure to call a witness.<ref>
In certain circumstances, adverse inferences may be made from a party's failure to call a witness.<ref>
R v Lapensee, [http://canlii.ca/t/25lrz 2009 ONCA 646] (CanLII){{perONCA| O'Connor ACJ}} at para 41<br>
''R v Lapensee'', [http://canlii.ca/t/25lrz 2009 ONCA 646] (CanLII){{perONCA| O'Connor ACJ}} at para 41<br>
R v Jolivet, [2000] 1 SCR 751, [http://canlii.ca/t/526w 2000 SCC 29] (CanLII){{perSCC|Binnie J}}, at para 25<br>
''R v Jolivet'', [2000] 1 SCR 751, [http://canlii.ca/t/526w 2000 SCC 29] (CanLII){{perSCC|Binnie J}}, at para 25<br>
</ref>
</ref>
Any inference should be made from "ordinary logic and experience" and only where there is "plausible reason for nonproduction".<ref>
Any inference should be made from "ordinary logic and experience" and only where there is "plausible reason for nonproduction".<ref>
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R v Ruiz [http://canlii.ca/t/1lk9j 1991 CanLII 2410] (NB CA), (1991), 68 CCC (3d) 500 (N.B.C.A.){{perNBCA|Angers JA}} at p. 505 (dissenting, but not on this point), aff’d on other grounds [http://canlii.ca/t/1frzl 1993 CanLII 84] (SCC), [1993] 3 SCR 649{{perSCC|La Forest J}}</ref>
R v Ruiz [http://canlii.ca/t/1lk9j 1991 CanLII 2410] (NB CA), (1991), 68 CCC (3d) 500 (N.B.C.A.){{perNBCA|Angers JA}} at p. 505 (dissenting, but not on this point), aff’d on other grounds [http://canlii.ca/t/1frzl 1993 CanLII 84] (SCC), [1993] 3 SCR 649{{perSCC|La Forest J}}</ref>
A judge should only draw an adverse inference be done "with the greatest of caution".<ref>
A judge should only draw an adverse inference be done "with the greatest of caution".<ref>
R v Charette, (1982), 67 CCC (2d) 357 (Ont. C.A.), [http://canlii.ca/t/g943p 1982 CanLII 3738] (ON CA){{perONCA|Goodman JA}} at p. 359<br>
''R v Charette'', (1982), 67 CCC (2d) 357 (Ont. C.A.), [http://canlii.ca/t/g943p 1982 CanLII 3738] (ON CA){{perONCA|Goodman JA}} at p. 359<br>
See also R v Zehr, (1980), 54 CCC (2d) 65 (Ont. C.A.), [http://canlii.ca/t/gcx5k 1980 CanLII 2964] (ON CA){{perONCA|Brooke JA}} (3:0) at p. 68<br>  
See also ''R v Zehr'', (1980), 54 CCC (2d) 65 (Ont. C.A.), [http://canlii.ca/t/gcx5k 1980 CanLII 2964] (ON CA){{perONCA|Brooke JA}} (3:0) at p. 68<br>  
R v Koffman and Hirschler, (1985), 20 CCC (3d) 232 (Ont. C.A.), [http://canlii.ca/t/g9xfc 1985 CanLII 3640] (ON CA){{perONCA|Martin JA}} (3:0), at p. 237<br>  
R v Koffman and Hirschler, (1985), 20 CCC (3d) 232 (Ont. C.A.), [http://canlii.ca/t/g9xfc 1985 CanLII 3640] (ON CA){{perONCA|Martin JA}} (3:0), at p. 237<br>  
R v Dupuis [http://canlii.ca/t/6jhj 1995 CanLII 1543] (ON CA), (1995), 98 CCC (3d) 496 (Ont. C.A.){{perONCA|Osborne JA}}, at p. 508 <br>
R v Dupuis [http://canlii.ca/t/6jhj 1995 CanLII 1543] (ON CA), (1995), 98 CCC (3d) 496 (Ont. C.A.){{perONCA|Osborne JA}}, at p. 508 <br>

Revision as of 20:23, 12 January 2019

Introduction

Credibility refers to the trustworthiness of a witness.[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]

Standard of Appellate Review
Findings of credibility are afforded a high degree of deference.[6] This is on account that the trial judge is in a far superior position to assess it.[7]

A related point of review is where the judge makes an error of law by applying a "stricter standard of scrutiny than the evidence of the Crown" as it relates to evaluating credibility.[8]However, this route of appeal is not be to be used as a "veiled invitation to reassess the trial judge’s credibility determinations."[9]

  1. ↑ Raymond v Bosanquet, 1919 CanLII 11, (1919) 59 SCR 452, per Davies CJ at p.460
    see discussion on credibility and reliability in R v C. (H.), 2009 ONCA 56 (CanLII), per Watt JA (3:0) at para 41
  2. ↑ R v Thain 2009 ONCA 223 (CanLII), (2009), 243 CCC (3d) 230 (Ont. C.A.), per Sharpe JA (3:0), at para 32
  3. ↑ Raymond v Bosanquet, supra
    R v White, 1947 CanLII 1 (SCC), [1947] SCR 268 at 272
  4. ↑ Tatarchuk v Sidor (1951), 1 W.W.R. (N.S.) 435 at 448 (Alta. C.A.)(*no CanLII links)
    R v P. (R.) 1994 CanLII 6250, (1994), 94 CCC (3d) 571 (Que. C.A.), per curiam
    R v Norman 1993 CanLII 3387, (1993), 16 O.R. (3d) 295 (C.A.) (ONCA), per Finlayson JA
    R v Marzan (1982), 18 Man. R. (2d) 240(*no CanLII links) at 246
    R v Neary, 2000 NFCA 22 (CanLII), per O’Neill JA at para 27
    R v Oldford, 2001 NFCA 34 (CanLII), per Gushue JA at para 75
  5. ↑ Faryna v Chorny [1952] 2 DLR 354 (BCCA), 1951 CanLII 252 (BC CA), 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), (1980), 116 DLR(3d) 594, per Laycraft JA (3:0) at 595
  6. ↑ R. v Aird, 2013 ONCA 447 (CanLII), per Laskin JA (3:0) at para 39
    R. v Marshall, 2015 ONCA 692 (CanLII), per Cronk JA (3:0)
  7. ↑ R. v Howe (sub nom J.H.) 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), per Doherty JA (3:0) at para 46
  8. ↑ R v RL, 2016 ONCA 455 (CanLII), per Strathy CJ (3:0) at para 46
    Howe, supra
    R v TT, 2009 ONCA 613 (CanLII), per Blair JA, at paras 28 and 31
  9. ↑ Aird, supra, at para 39

Oath-helping

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] Reasons for adducing oath-helping evidence includes showing corroboration with other extrinsic evidence and narrative.

The Crown cannot introduce evidence showing that their witness has testified in court previously resulting in convictions.[2]

The Defence cannot adduce evidence establishing that the accused passed a polygraph test.[3]

  1. ↑ R v Llorenz, 2000 CanLII 5745 (ON CA), per O'Connor JA
  2. ↑ R v Mallory, 2007 ONCA 46 (CanLII), per curiam
  3. ↑ R v Thorne (1988), 82 N.S.R. (2d) 442 (S.C.A.D.), 1988 CanLII 7109 (NS CA), per Macdonald JA
    R v Bedgood 1990 CanLII 2491 (NS CA), (1990), 98 N.S.R. (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), per O'Connor ACJ at para 41
    R v Jolivet, [2000] 1 SCR 751, 2000 SCC 29 (CanLII), per Binnie J, at para 25
  2. ↑ Lapensee, supra
  3. ↑ Lapensee, supra
  4. ↑ Lapensee, supra
  5. ↑ R v Ruiz 1991 CanLII 2410 (NB CA), (1991), 68 CCC (3d) 500 (N.B.C.A.), 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), 67 CCC (2d) 357 (Ont. C.A.), 1982 CanLII 3738 (ON CA), per Goodman JA at p. 359
    See also R v Zehr, (1980), 54 CCC (2d) 65 (Ont. C.A.), 1980 CanLII 2964 (ON CA), per Brooke JA (3:0) at p. 68
    R v Koffman and Hirschler, (1985), 20 CCC (3d) 232 (Ont. C.A.), 1985 CanLII 3640 (ON CA), per Martin JA (3:0), at p. 237
    R v Dupuis 1995 CanLII 1543 (ON CA), (1995), 98 CCC (3d) 496 (Ont. C.A.), per Osborne JA, at p. 508
    R v Witter 1996 CanLII 4005 (ON CA), (1996), 105 CCC (3d) 44 (Ont. C.A.), per Doherty JA, at p. 55
    R v Marshall 2005 CanLII 30051 (ON CA), (2005), 77 O.R. (3d) 81 (C.A.), 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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