“As in all cases, the credibility and reliability of witnesses are important considerations, particularly where there are different versions of events advanced by the parties.
In assessing credibility, the Court is concerned with the witnesses’ truthfulness: R. v. C.(H.), 2009 ONCA 56 at para. 41. Reliability involves consideration of the accuracy of the witnesses’ testimony, considering their ability to accurately observe, recall and recount events in issue: R. v. C.(H.), ibid. A credible witness may provide unreliable evidence, as it is possible that the witness has misperceived events, has a poor memory or could simply be wrong. Ultimately, the Court must assess not merely the witnesses’ truthfulness, but also the accuracy of their evidence.
As stated by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51 at para. 49: “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”
Justice Nicholson, in Christakos v. De Caires, 2016 ONSC 702, citing with approval Novak Estate, Re, referenced the following:
In assessing credibility in the face of conflicting evidence, MacDonald, J. adopted the outline set out in Novak Estate, Re, 2008 NSSC 283, 269 N.S.R. (2d) 84 (N.S. S.C.), at paras. 36-37:
There are many tools for assessing credibility:
a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.
b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.
c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133(B.C. C.A.), it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.
d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution ( v. Mah, 2002 NSCA 99(N.S. C.A.) [at paras.] 70-75).
e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. ( v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39(Ont. C.A.) [at paras.] 51-56).
There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part, or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.) at [para.] 93 and R. v. Howe supra). [Emphasis in original.]: Christakos v. De Caires, 2016 ONSC 702 at para. 10.
The Ontario Court of Appeal in R. v. Wills stated the following about inconsistencies:
… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.). Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31: R. v. Wills, 2018 ONCA 138, at para. 33, citing with approval R. v. M.(A.), 2014 ONCA 769, at paras. 12 to 14.”