When a trier of a fact (a judge or jury) analyzes the testimony of a witness, they assess his or her credibility and reliability. Credibility refers to a witness’s honesty or veracity, whereas reliability refers to a witness’s accuracy. When assessing the accuracy of a witness, the trier of fact must consider one’s ability to observe, recall, and recount events at issue (R v HC, 2009 ONCA 56).
Analysis of Credibility of a Witness
There is no scientific method that can be applied to evaluate the credibility of a witness (R v Gagnon, [2006] 1 SCR 621). It has been held to be “a multifactorial evaluation of the witness that includes factors such as the witness’ intelligence, demeanor, ability and capacity to observe and remember, and the intent of the witness to be truthful or deceive” (R v Lunz, 2013 ABQB 150).
Witness Credibility, Reliability, and Inconsistencies
Consistencies or inconsistencies between what a witness has said in the witness-box and on other occasions are an important aspect in assessing credibility (R v AM, [2014] OJ No 5241). Inconsistencies on minor or “peripheral matters” such as time, speed, and distance may not affect the overall credibility of a witness (R v AF, 2010 ONSC 5824). However, “a series of [minor] inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of a witness’s evidence” (R v W(S), [1994] OJ No 811).
A Witness’s Motive to Fabricate
The trier of fact may consider the existence or absence of a motive to fabricate an allegation in assessing a witness’s credibility (R v LeBrocq, 2011 ONCA 405). However, the absence of evidence of a motive to fabricate should not be considered as the same as an actual absence of a motive to fabricate or be used to suggest that a complainant is telling the truth (R v LL, 2009 ONCA 413).
Demeanour and Credibility
The demeanour of a witness can be used to assess his or her credibility. This may include “non-verbal cues…body language, eyes, tone of voice, and the manner [of speaking]” as well as “their movements, glances, hesitations, trembling, blushing, surprise, or bravado” (R v NS, 2010 ONCA 670; Laurentide Motels Ltd v Beauport (City), [1989] 1 SCR 705).
However, demeanour must be considered with caution as it can be affected by factors including the “culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom” (R v Dyce, 2017 ONCA 123).
Witness Credibility in Sexual Assault Trials
A trier of fact cannot rely on “pre-conceived views about how sexual victims would behave” to assess one’s credibility (R v Cepic, 2019 ONCA 541). Further, late disclosure of an offence by a complainant in a sexual assault case cannot be used for an adverse inference of credibility (R v DD, 2000 SCC 43).
The Credibility and Reliability of Child Witnesses
It has been accepted by numerous courts that children “experience the world differently from adults,” and therefore, the absence of details such as time and place in the testimony of a child is understandable and not necessarily fatal (R v W(R), [1992] 2 SCR 122). The Supreme Court of Canada has held that the “judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standards on them as it does on adults. However, this is not to say that courts should not carefully assess the credibility of child witnesses” (R v W(R), [1992] 2 SCR 122).
The W(D) Framework
The W(D) test is necessary where credibility is a central or significant issue, usually between the accused and a complainant or eye-witness (R v Daley, [2007] 3 SCR 523).
The analysis includes the following considerations for the trier of fact:
- First, if you believe the evidence of the accused, obviously 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 (R v W(D), [1991] 1 SCR 742).
Acceptance of Witness Testimony
The trier of fact may believe all, some, or none of a witness’s testimony (R v MR, 2010 ONCA 285). The trier of fact may also give different weight to each piece of accepted evidence from a witness (R v Howe, [2005] OJ No 39 (CA)). However, the evidence of a witness must be assessed based on the totality of the evidence given, as it is an error of law to evaluate credibility and reliability based on individual pieces of evidence without looking at it as a whole (R v JMH, 2009 ONCA 834).
