The Application of Credibility in Criminal Trials

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The Application of Credibility in Criminal Trials

Credibility is at issue in nearly every criminal case, yet its application and underlying principles cause considerable confusion for lawyers and judges alike. There is likely no greater issue on appeal than that of trial judges failing to properly conduct a credibility assessment.

The Supreme Court of Canada, set out the three part test for determining the issue of credibility where the accused has taken the stand in the seminal case of R v. W(D).

First, if you believe the evidence of the accused you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

However, since W(D), there have been hundreds of cases where the formula is used but the credibility assessment is done incorrectly, leading to countless appeals.

Recently, in R v. Ryon, Justice Peter Martin of the Alberta Court of Appeal writing for the majority, expanded on W(D) in an attempt to provide greater clarity to trial judges in assessing credibility.

An important aspect of this decision is found at paragraph 40:

A related concern is that while one object of the W. (D.) instruction is to avoid the “credibility contest” error, the instruction does not address that. The jury should be told that the trial is not a credibility contest requiring them to choose one version over the other and that if, after considering the conflicting evidence, they are unable to decide which version is true, that will usually indicate they have a reasonable doubt as to that evidence.

The Crown’s case must be so strong to leave no doubt and the defence case so weak that it leaves no doubt. Importantly, it is not a matter of picking and choosing what version to believe.

Simply put, the onus is on the Crown to prove their version beyond a reasonable doubt and disprove the accused’s version beyond a reasonable doubt. The Crown must prove their version beyond a reasonable doubt, while the defence need not prove anything. The defence version need only raise a reasonable doubt which is a much lower standard that is required by the Crown.

In assessing credibility and determining proof beyond a reasonable doubt, the trier of fact need not even believe the accused or defence witnesses for there to be an acquittal. In fact, the evidence of the accused need not even be probable for there to be an acquittal. If the accused’s version could have happened, there should be an acquittal.

A useful discussion of a proper credibility assessment based on W(D) is found in Ryon at para 51:

 (i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to the caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent of the defence.)

(ii) In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such as an objective component discussed at para 31).

(iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit.

(iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.

If the trial judge wishes to reject the evidence of the accused so that it does not even raise a reasonable doubt reasons must be given for this conclusion. A lack of reasons for rejecting an accused’s version of events is often a ground of appeal.

In R. v. Stamp, the Alberta Court of Appeal stated at paragraphs 9, 10 and 11:

The duty to give reasons applies to “credibility assessments as much as to… fact finding and legal analysis” per Laskin J.A. in R.. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.) At 252 (application for leave to appeal to the Supreme Court of Canada dismissed March 3, 2005).

Although a judge is presumed to know the law, there is no hint in the reasons below as to whether the credibility of the Appellant was addressed, nor, if it was, whether the three-part analysis of R. v. W.(D.), supra, was employed. The complainant’s testimony, and that of her cousin, was believed, but no explanation was proffered for rejecting the evidence of the Appellant. The judge said only that she had no reasonable doubt.

The danger, of course, is that a mere conclusory statement of rejection of an accused’s testimony may hide erroneous legal reasoning. As the court observed in R. v. Maharaj, supra, the trial judge must articulate the path as to why the accused should be disbelieved. I agree with the Appellant that in this case, where his evidence was not self-evidently incredible or unreliable, he is entitled to some analysis of his testimony, both alone and in the context of the evidence as a whole, and he is entitled to know why his denials were disbelieved.

Then In R. v. Ellis, the Prince Edward Island Supreme Court on Appeal stated at paras 24, 25 and  27:

What really stands out as missing from the reasons, despite the brief references to W.(D.) and to proof beyond a reasonable doubt “based on all the evidence adduced,” is any analysis or consideration of whether the appellant’s evidence might reasonably be true even though the trial judge did not find him credible. Even if one accepts that the trial judge’s finding that the appellant was not credible impliedly includes a finding that his evidence does not raise a reasonable doubt, there is still no application of the third prong of the W.(D.) formula. After making the determinations of credibility the trial judge did not, as a trial judge must, go on to analyse whether the appellant’s testimony, or the evidence taken as a whole raised a reasonable doubt.

The trial judge did not explain why the appellant’s evidence alone or in the context of the evidence as a whole did not raise a reasonable doubt. There is nothing obvious or inherent in the evidence of the appellant to show that his evidence was incredible or could not reasonably be true. The appellant frankly admitted to being very close to the complainant. He described their relationship as being like brother and sister. They roughhoused with each other and played video games together. Sometimes they played the video games in the complainant’s bedroom. However, the appellant emphatically denied ever having sexual relations with the complainant. He maintained steadfast in his denial throughout his testimony and was not shaken from that position on cross-examination. The trial judge did not point to any inconsistencies in his testimony or find that he was an evasive witness. Furthermore, there is at least some support for the appellant’s version of events in parts of the testimony of some of the other witnesses.

Lastly, in R. v. R.E.M, the Supreme Court held at para 17 and 50:

These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” — the verdict — and the “why” — the basis for the verdict. The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo, where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. “In a case that turns on credibility… the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt” (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo, at para. 30.

When the Crown argues that they have proven their version of events beyond a reasonable doubt, they must be able to articulate why it is that the evidence of the accused or defence witnesses must not be true.

An accused’s evidence deserves as much consideration as that of the prosecution evidence. Importantly, an accused’s evidence does not have to meet the onus of proof beyond a reasonable doubt like that of the Crown’s evidence. Most often, an accused takes the stand and gives a blanket denial of the allegations. The question is then: what more can an accused do to prove his or her innocence? All an accused can do is take that stand and speak the truth and be subjected to capable and experienced cross-examination.

In R. v. D. (A.R.), the Court held that when an accused’s evidence is not impeached and he remains firm and unshaken in cross-examination, weight must be given to it and reasons must be provided if that evidence is rejected. At paragraph 13:

The appellant remained steadfast and consistent in his testimony despite rigorous cross-examination by experienced Crown counsel. As been held by this court in R. v. Oraniuk, the evidence of an accused which is firm and unshaken by cross-examination deserves some weight and should not be rejected without explanation. The trial judge cannot sweep away such evidence by simply saying he or she disbelieves it. The appellant deserved to be informed why the trial judge concluded his evidence was so unbelievable it did not even give rise to a reasonable doubt.

In a very old case from the Alberta Court of Appeal, R v Covert, the Court said the following about an accused taking the stand at paragraph 68:

It will be objected of course that the magistrate may have disbelieved entirely the evidence on behalf of the accused and that it was open to him to do so; but in my opinion it cannot be said without limitation that a Judge can refuse to accept evidence.

I think he cannot if the following conditions are fulfilled: (1) that the statements of the witness are not in themselves improbable or unreasonable (2) that there is no contradiction of them (3) that the credibility of the witness has not been attacked by evidence against his character (4) that nothing appears in the course of his evidence or of the evidence of any other witnesss tending to throw discredit upon him and (5) that there is nothing in his demeanor while in Court during the trial to suggest untruthfulness.

A Court must ask itself: Is the Crown testimony coherent? Does it stand up to scrutiny? Is it reliable? Is it credible?

A conviction can only come about if the Crown evidence is so reliable, so consistent and so believable that it proves beyond a reasonable doubt the guilt of the accused. There must be no other reasonable conclusion from the evidence. If there is any reasonable doubt remaining after hearing the evidence of the Crown, either because of inconsistencies, unreliability, a lack of credibility, or anything else, the Court must acquit — no matter what it thought of the accused’s evidence.

Credibility of Children

Many criminal cases, especially sexual assaults, revolve around assessing a child witness’s credibility, especially with respect to inconsistencies and contradictions.

This issue was addressed by the Supreme Court of Canada in the early 1990’s, by Wilson J. in R. v. B. (G.) and by McLachlin J. in R. v. W. (R.). In B.(G.), Wilson J. stated as follows at paragraphs 219-20:

. . . it seems to me that [the trial judge] was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

As McLachlin J. stated in W. (R.) at p. 143, details important to adults, like time and place, may be missing from a child’s recollection. McLachlin J. also dealt with the question of credibility in relation to the testimony of an adult relating events that occurred

to him or her as a child. She stated as follows at p. 144:

… In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

There is no lower standard or proof that a Court must provide a child witness. Inconsistencies around a child complainant’s evidence that are not simply with peripheral matters such as time and place, but with the acts themselves and the circumstances surrounding the acts, are not to be held to any lower standard.

There is no lower standard or proof that a Court must provide a child witness. Inconsistencies around a child complainant’s evidence that are not simply with peripheral matters such as time and place, but with the acts themselves and the circumstances surrounding the acts, are not to be held to any lower standard.  If you require any legal support for criminal law please contact our criminal lawyers at Wilson Criminal Defence.

May 14, 2020 · Tim Kevan · Comments Closed
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