“In the recent decision of McBennett v. Danis 2021 ONSC 3610, Chappell J. sets out an excellent and comprehensive summary of the law with respect to credibility:
[40] Dealing first with the law respecting the assessment of credibility and reliability, as I recently discussed in Kinsella v. Mills, 2020 ONSC 4785 (S.C.J.), the caselaw has established that this process is not an exact science; rather, it is a challenging and delicate task, the outcome of which is often difficult to explain in precise terms. As the Supreme Court of Canada stated in R. v. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20, it is not always possible “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (see also R. v. M.(R.E.), 2008 SCC 51 (S.C.C.), at para. 49; Hurst v. Gill, 2011 NSCA 100 (C.A.), at paras 18-19). The complexity of the task is heightened by the fact that the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety. On the contrary, they may accept none, part or all of a witness’ evidence, and may also attach different weight to different parts of a witness’ evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. Howe, 2005 CarswellOnt 44 (C.A.), at paragraphs 51-56; R. v. Boutros, 2018 ONCA 275 (C.A.); McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).
[41] Despite the challenges inherent in the task of assessing reliability and credibility, the caselaw has articulated numerous factors that the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C.C.A.), at para 9; R. v. Norman, (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.); R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at para. 23; R. v. Mah, 2002 NSCA 99 (C.A.), at paragraphs 70-75; R. v. Jeng, 2004 BCCA 464 (C.A.); Bradshaw v. Stenner, 2010 BCSC 1398 (S.C.), at para 186, aff’d 2012 BCCA 296 (C.A.); Brar v. Brar, 2017 ABQB 792 (Q.B.), at paras. 9-16; R.v. D.A., 2018 ONCA 612 (C.A.), at paras. 11-21 and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538 (S.C.), at paras. 34-40, these considerations include the following:
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- Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not? Inconsistencies on minor matters of detail are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.); R. v. D.A.).
- Was there a logical flow to the evidence?
- Were there inconsistencies between the witness’ testimony and the documentary evidence?
- Were there inconsistencies between the witness’ evidence and that of other credible witnesses?
- Is there other independent evidence that confirms or contradicts the witness’ testimony?
- Did the witness have an interest in the outcome, or were they personally connected to either party?
- Did the witness have a motive to deceive?
- Did the witness have the opportunity and ability to observe the factual matters about which they testified?
- Did they have a sufficient power of recollection to provide the court with an accurate account?
- Were there any external suggestions made at any time that may have altered the witness’ memory?
- Did the evidence appear to be inherently improbable and implausible? In this regard, the question to consider is whether the testimony is in 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?” (Faryna, at para. 10).
- Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
- Where appropriate, was the witness capable of making concessions not favourable to their position, or were they self-serving?
- Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mahat paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness’ poor presentation as deceptive (R. v. Jeng, at paras. 53-54).”
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