“Assessing credibility is not a science. It is difficult 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: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 48. A judge is not required to believe or disbelieve a witness’s testimony in its entirety. On the contrary, the judge may accept none, all, or part of a witness’s evidence: Kinsella v. Mills, 2020 ONSC 4785, at para. 69.
In assessing a witness’s credibility, as set out in Kinsella v. Mills at para. 69, the court may take into account considerations including the following:
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- Were there inconsistencies and weaknesses in the witness’s evidence, including internal inconsistencies or evidence of prior inconsistent statements?
- Was there a logical flow to the evidence?
- Were there inconsistencies between the witness’s testimony and the documentary evidence?
- Were there inconsistencies between the witness’s evidence and that of other credible witnesses?
- Is there other independent evidence that confirms or contradicts the witness’s 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 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?
- Is the testimony 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?”
- 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 an admission against interest, or were they self-serving?
- Consideration may also be givento the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. The courts have also cautioned against preferring the testimony of the better actor in court, and, conversely, misinterpreting an honest witness’s poor presentation as deceptive.”
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