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Testmiony of Witnesses (General)
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Uneven Scrutiny of the Evidence
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Testimony of the Accused
W.(D). Analysis
The trial judge does not necessarily have to give a W.(D). instruction with respect to exculpatory portions of the accused's statements to police or others - as long as the charge as a whole makes the burden of proof in relation to reasonable doubt and issues of credibility clear to the jury: R v Barrett, 2015 ONCA 012 at paras 15, 19; R v McCracken, 2015 ONCA 228 at paras 90-91
The trial judge need not expressly articulate the W.(D.) analysis in his/her reasons, so long as it is clear that s/he engaged in the proper analysis.
When a trial judge rejects an accused’s testimony in a trial by a judge alone, it can generally be concluded that the testimony also failed to raise a reasonable doubt in the trial judge’s mind: R v BW, 2016 ONCA 96 at paras 11-12
A W. (D.) instruction might also be applicable to cases where the accused did not testify: R v McCracken, 2015 ONCA 228 at para 90
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Evaluation of an accused's out of-court statements: see here
Testimony of Child Witnesses
Evaluation of credibility
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The evidence of children should not be approached from the perspective of rigid stereotypes, but on a common sense basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case: R v Becks, 2016 ONCA 91 at para 22; R v Radcliffe, 2017 ONCA 176 at para 34
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Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: R v CK-D, 2016 ONCA 66 (citing R v AM, 2014 ONCA 769) at paras 17-19
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Evaluation of statements tendered under section 715.1: click here
Testimony of Witnesses (General)
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Evaluation of Credibility
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A trier of fact is entitled to accept some, none, or all of a witness' evidence. (​This may explain a jury's conviction on some counts but not others): R v Doell, 2016 ONCA 350 at paras 7-8, 10
The trial judge is obliged to bear in mind the effect of testifying through an interpreter on the ability to assess credibility and reliability: R v Kamali-Mafroujaki, 2017 ONCA 57 at para 4
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Interested Parties
The fact that a witness has an interest in the outcome of the proceedings is a relevant factor in assessing his/her credibility, but this should not be given undue weight: R v SC, 2016 ONCA 83 at para 34
The fact that a witness is hostile to the accused does not mean that they have a great interest in the outcome of the proceedings: R v SC, 2016 ONCA 83 at para 40
Demeanor Evidence
Proper Use of
A trial judge may consider demeanor in assessing the credibility of a witness, but must not give undue weight to demenaor evidence because of its fallibility as a predictor of the accuracy of a witness' testimony: R v Hemsworth, 2016 ONCA 85 at paras 44-45; R v AA, 2015 ONCA 558 at paras 133-134
Problems with
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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. R v Rhayel, 2015 ONCA 377
Demeanour evidence contains two invalid assumptions: 1) for every event there is a normal reach; and 2) a person’s reaction actually reflects his inner emotional reaction or state. As a result of the invalid assumptions that underpin demeanour evidence, this evidence requires a predominance of probative value over prejudicial effect to be admissible: R v Pannu, 2015 ONCA 677 at para 126-127
Demeanour cannot be the sole determinant of the credibility of a witness or the reliability of his/her evidence: R v Hemsworth, 2016 ONCA 85 at para 45
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Example of Proper Use
The trial judge may be entitled to consider the complainant’s demeanour at trial in determining whether her professed failure to recall stemmed from her stated wish to reconcile with the appellant: R v KM, 2015 ONCA 582 at para 4
KGB statements
When determining the appropriate weight to be given to a KGB statement, the court can consider the witness’ demeanor – both at the time of making the statement and at trial: R v Siddiqi, 2015 ONCA 548 at para 16
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Uneven Scrutiny of the Evidence
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The Test
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Subjecting the evidence of the defence to a higher or stricter level of scrutiny than the evidence of the Crown is an error of law, which displaces the deference normally owed to a trial judge’s assessment of credibility. But, to succeed, defence must point to something substantial in the record: R v Rhayel, 2015 ONCA 377 at para 96; R v JA, 2015 ONCA 754 at para 35
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To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.: R v DJL, 2015 ONCA 333 at para 10; R v. Andrade, 2015 ONCA 499 at para 39; R v AF, 2016 ONCA 263 at para 6
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It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment: Andrade at para 39 (citation ommitted); Rhayel at para 95; R v Radcliffe, 2017 ONCA 196 at para 24
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In the absence of palpable and overriding error, an appellate court cannot reassess and reweigh evidence: Radcliffe at para 26
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In making this argument, counsel should also be mindful that the trial judge is entitled to accept some, none, or all of the witness' evidence: R v Laine, 2015 ONCA 519 at para 47
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It is difficult to suceed in this type of argument for two reasons: 1) Credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and 2) Appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations: Rhayel at para 97; AF at para 6
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A failure to adequately scrutinize the weaknesses in the Crown’s case and appreciate the position of the defence warrants reversal on any of three basis: inadequate reasons; unreasonable verdict; or miscarriage of justice: R v Wolynec, 2015 ONCA 656 at para 38
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Applying different levels of scrutiny results in an unfair trial & a miscarriage of justice, even if there was enough evidence to support a conviction: R v Gravesand, 2015 ONCA 774 at para 43
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Vetrovec Witnesses: click here
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