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Canadian Criminal Procedure and Practice/Trials/Weighing Evidence

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Findings of Fact

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Only the trier-of-fact (the judge or jury) can make findings of fact unless there is an agreement on facts or an admission under s. 655 of the Code.

The testimony of a witness is not a fact until the trier finds it as so. It is only for the trier to decide. The trier may accept all, some, or none of what a witness says.[1] If the witness is not believed on an issue, the evidence supporting it must be rejected. [2]

Of the evidence accepted, the trier-of-fact may associate different weights to individual parts of the evidence.[3]

When considering testimony evidence, its value comes down to four factors:[4]

  1. perception,
  2. memory,
  3. narration, and
  4. sincerity

The court does have a limited power to edit statements and other forms of evidence as part of its jurisdiction over the trial process. This is usually applied where the evidence is unduly prejudicial.[5]

The trier-of-fact may only convict where there has been "acceptable credible evidence" that was found to be factually correct.[6] If "contradictory evidence" exists on an element of the charge the Defendant must be given the benefit of that doubt even if the Defence evidence is rejected.[7]

In appropriate cases, regardless of the offence, it is reasonable to find guilt based solely on the evidence of a single witness.[8]

When confronted with two contradictory stories, a judge does not need to make a finding of fact as to which story is correct.[9]

Guilt should not be based a credibility contest or choice between competing evidence. This should "erode" the presumption of innocence and standard of proof beyond a reasonable doubt.[10] However, it is not an error to make "finding of credibility as between the complainant and the accused" as long as all the steps of further analysis are taken.[11]

  1. ↑ R. v. D.A.I., 2012 SCC 5 (CanLII), [2012] 1 SCR 149, at para. 72
    R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at p. 837
    R. v. B.C., 2011 ONCA 604 (CanLII), at para 5 leave refused
    R. v. M.R., 2010 ONCA 285 (CanLII), at para. 6
  2. ↑ R. v. Morin, (1987), 36 C.C.C. (3d) 50 per Cory J.A.
  3. ↑ R. v. Howe, 2005 CanLII 253 (ON CA), (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44
  4. ↑ Kenneth S. Broun et al., 2 McCormick on Evidence, (6th ed.) (USA: Thomson/West, 2006), §245, at p. 125 and R. v. Baldree, 2012 ONCA 138 at 43
  5. ↑ R. v. Dubois, (1986), 27 C.C.C. (3d) 325
  6. ↑ R. v. Campbell, 1995 CanLII 656 (ON C.A.)
  7. ↑ R. v. Chan, 1989 ABCA 284
    R. v. C.W.H., 1991 CanLII 3956 (BC C.A.)
    R. v. Miller, 1991 CanLII 2704 (ON C.A.)
  8. ↑ R. v. G.(A.), 2000 SCC 17 (CanLII), [2000] 1 S.C.R. 439, at pp. 453-4
    R v Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at pp. 819-820
  9. ↑ R. v. Avetysan, 2000 SCC 56 (CanLII), 2000 SCC 56 at p. 2
  10. ↑ W.(D.) v. The Queen 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-8
    Avetsyan v. The Queen, 2000 SCC 56 (CanLII), [2000] 2 S.C.R. 745, at paras. 18-22
  11. ↑ R. v. Chittick, 2004 NSCA 135 (CanLII), 2004 NSCA 135, at paras. 23-25

Evaluating Credibility

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Generally

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Evaluating evidence involves the assessment of a witnesses credibility and reliability. These are distinct but related concepts referring to the witness' veracity (the former) and accuracy (the latter).[1] There can be significant overlap. "Testimonial reliability" or "reliability" can often mean or include credibility.[2]

Evaluating credibility is not a scientific process[3], and so there are no hard and fast rules to apply.[4]

  1. ↑ R. v. Morrissey, 1995 CanLII 3498 (ON CA), (1995), 22 O.R. (3d) 514 at para. 33 per Doherty J.A.
  2. ↑ R. v. Woollam, 2012 ONSC 2188 (CanLII) at para. 90-111 gives detailed canvassing of use of term "reliability" also referring to see R. v. Murray 1997 CanLII 1090 (ON CA), (1997), 115 C.C.C. (3d) 225 (Ont.C.A.); R. v. Thurston, [1986] O.J. No. 2011 (Gen. Div.); R. v. K.T.D., [2001] O.J. No. 2890 (S.C.J.)
  3. ↑ R v Gagnon 2006 SCC 17
  4. ↑ R v White , [1947] SCR 268 1947 CanLII 1
    R. v. S.I.C., 2011 ABPC 261 at 19

Factors

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There are many tools for assessing the credibility and reliability of a witness' testimony:[1]

  1. Internal inconsistencies: consider the inconsistencies with previous statements or testimony at trial.
  2. External inconsistencies: consider the contradictory and corroborative evidence between witnesses;
  3. Bias and Partiality: assess the partiality of witnesses due to kinship, hostility, self-interest, or any other motive to favour or injure the accused;
  4. Capacity: consider the capacity of the witness to relate their testimony:
    1. ability and opportunity to observe,
    2. ability to remember and
    3. ability to communicate the details of their testimony;
  5. Justifiable error: consider whether the witness, because of the turmoil surrounding the event at the time it occurred, have been easily or understandably in error as to detail, or even as to the time of the occurrence;
  6. consider the emotional state of the witness at the time (in a calm state or panicked state, for example);
  7. if recollection was recorded, consider the timing at which notes where made;
  8. consider the demeanor of the witness in the witness box (voice tone, body language, etc)
  9. consider the manner of response, being whether the witness was forthright and responsive to questions or was the witness evasive, argumentative or hesitant to answer (either at time of testimony or in prior statements);
  10. consider whether common sense suggests that the evidence is impossible or highly improbable or whether it was reasonable and consistent with itself and with the uncontradicted facts.
    1. considering whether a persons' words and actions are explained and whether it matches their emotional state at the time[2]
    2. the reasonableness of a person's reaction to events
    3. evidence showing the demeanor of a complainant shortly following the offence can be useful to credibility. A person alleging a sexual assault or common assault may be quite upset when speaking to police, which may lend to credibility.[3]
    4. whether there is any embellishment or minimizing of events. Likewise, an signs of attempts at recasting evidence to suit a partricular goal; putting himself in a good light


  1. ↑ e.g. see list in R. v. Jacquot, 2010 NSPC 13 at para. 40
    R. v. Comer, 2006 NSSC 217 at para. 96
    R. v. Snow, 2006 ABPC 92 at 70
    R. v. McKay, 2011 ABPC 82 at 14
    R. v. Abdirashid, [2012] A.J. No 131 at para 8 to 11
    R. v. D.F.M., 2008 NSSC 312 at para 11 citing R. v. Ross, 2006 NSPC 20 at para. 6
  2. ↑ A judge is entitled to consider the emotional condition of the accused for consistency with the claimed offence:
    R. v. Murphy, 1976 CanLII 198, [1977] 2 S.C.R. 603, Spence J. for the majority at 612.
    See also R. v. Sidhu, 2004 BCCA 59, 183 C.C.C. (3d) 199 at para. 51;
    R. v. Lavallee, [1993] B.C.J. No. 669 at paras. 2, 5 and 11 (C.A.);
    R. v. Huang, [1989] B.C.J. No 1296 at 7 (C.A.) per Macdonald J.A.; and
    R. v. Dorsey, [1987] O.J. No. 349 at 4-5 (C.A.)
  3. ↑ R. v. Mete[1998] O.J. No. 16 (OCJ)

Minor inconsistencies

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Inconsistencies between witnesses regarding things such as time, speed and distance, all of which are affected by subjective assessments, will usually have a limited effect on reliability unless glaringly different. Minor differences on details can in fact enhance, rather than detract, from the credibility of the witness as too much similarity will suggest collusion.

The courts should be hesitant to devalue a witnesses testimony based on minor or “perceived inconsistencies”.[1] The benefit of the doubt should be given to the witness.[2]


  1. ↑ R. v. A.F. 2010 OJ 4564, at para. 87
  2. ↑ R. v. Tran 1994 CanLII 56 (SCC) at 248

Major Inconsistencies

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Where there are two equally credible witnesses there are a number of rules of thumb that can be applied:

  • the testimony must be contrasted with the undisputed facts to see which is the closer "fit".[1]
  • The judge should consider what is reasonably recallable and not recallable by the particular witness.
  • the judge should favour the witness who is in a better position to know a particular fact.[2]
  • where evidence is "incredible", there must be more undisputed facts to support this claim[3]

Where there are major inconsistencies or contradictions with with key crown witnesses, or where there are otherwise conflicting evidence, the trier-of-fact would be "carefully assess" the evidence before.[4]

  1. ↑ R. v. F.E. (1999), 126 B.C.A.C. 161
    R. v. Ross, 2002 BCSC 445 [1]
  2. ↑ R. v. U.(F.J.), 1994 CanLII 1085 (ON C.A.) [2]
  3. ↑ R. v. B.(G.) [1990] SCR 57
  4. ↑ R. v. S.W. 1994 CanLII 7208 (ON CA), (1994), 18 O.R. (3d) 509 (C.A.), at p. 517
    R. v. Oziel, [1997] O.J. No. 1185 (C.A.)(QL), at paras. 8, 9
    R. v. Norman 1993 CanLII 3387 (ON CA), (1993), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4

Consistencies and Corroboration

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There is no rule requiring that intoxicated complainants must be corroborated to be relied upon for conviction.[1]

Where the testimony of a witness is uncontradicted, the trier-of-fact may rely on this in their assessment of credibility and reliability, however, need not accept the testimony as fact.[2]


  1. ↑ R. v. A.W., 2008 NLCA 52 (CanLII)
  2. ↑ R. v. Prokofiew, 2012 SCC 49

Motive and Bias

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The judge may take into account the absence of evidence that there was a motive to fabricate the allegation.[1]

  1. ↑ see R. v. Jackson, [1995] O.J. No. 2471 (C.A.); R. v. LeBrocq, 2011 ONCA 405 (CanLII), [2011] O.J. No. 2323, 2011 ONCA 405

Emotional State

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Evidence of emotional state "may constitute circumstantial evidence confirming that the offence occurred... including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state." [1]

  1. ↑ R. v. Lindsay, [2005] O.J. No. 2870 (S.C.J.)

Demeanour

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Credibility may be assessed from demeanour. This can include "non-verbal cues" and "body language, eyes, tone of voice, and the manner" of speaking.[1]

However, subjective view of demeanour can be unreliable indicator of accuracy.[2]

A judge should not decide on credibility on the strength of demeanour evidence as it would be too "dangerous".[3]

A decision on credibility based solely on demeanour of a witness is an error.[4]

Demeanour evidence alone is not always considered a proper manner of assessing credibility.[5]

Demeanour by itself cannot be sufficient alone to make a conclusion on credibility or conviction, especially where there are "significant and unexplained inconsistencies in the evidence.[6]

  1. ↑ R. v. N.S. (2010) 102 OR (3d) 161 (CA) at para. 55, 57
  2. ↑ Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3d) 1 (C.A.), at para. 66
    R. v. Smith, 2010 ONCA 229 (CanLII), at para. 11
    R. v. G.G. 1997 CanLII 1976 (ON CA), (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8
    R. v. P.-P.(S.H.) 2003 NSCA 53 (CanLII), (2003), 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30
    R. v. Levert 2001 CanLII 8606 (ON CA), (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2
  3. ↑ R. v. J.A.A. 2011 SCC 17 (CanLII), 2011 SCC 17, [2011] 1 S.C.R. 628 at para. 14 (“it would be dangerous for this Court to uphold the convictions and thus resolve the credibility issue in this case on the strength of demeanour evidence, or on the basis that one party’s version was less plausible than the other’s.”)
  4. ↑ e.g. R. v. J.F. 2003 CanLII 52166 (ON CA), (2003), 177 C.C.C. (3d) 1 at para. 101
    R. v. Norman 1993 CanLII 3387 (ON CA), (1993), 87 C.C.C. (3d) 153 at 173
    R. v. Gostick 1999 CanLII 3125 (ON CA), (1999), 137 C.C.C. (3d) 53 at 59-61
    R. v. A.(K.) 1999 CanLII 3756 (ON CA), (1999), 137 C.C.C. (3d) 554 (Ont. C.A.), at para. 44
  5. ↑ e.g. R. v. Penney, [2002] N.J. No. 98 (N.L.C.A.), at para. 61
    R. v. Jennings, [2011] N.J. No. 388 (T.D.), at 21
  6. ↑ see R. v. W.S. 1994 CanLII 7208 (ON CA), (1994), 90 C.C.C. (3d) 242 (Ont. C.A.) at p. 250
    Faryna v. Chorny, [1952] 2 D.L.R. 354 (BCCA) by O'Halloran J.A. at p. 357 ("The real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those conditions")

Common Sense and Plausibility

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It would be dangerous to uphold a conviction "on the basis that one party's version was less plausible than the other's."[1]

  1. ↑ R. v. J.A.A. 2011 SCC 17 (CanLII), 2011 SCC 17, [2011] 1 S.C.R. 628 at para. 14 (“it would be dangerous for this Court to uphold the convictions and thus resolve the credibility issue in this case on the strength of demeanour evidence, or on the basis that one party’s version was less plausible than the other’s.”)

Analysis of Testimony

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Judge's must be very careful to avoid falling into an analysis which compares the two versions without assessing "the whole evidence to establish proof of guilt beyond a reasonable doubt."[1]

A judge in his decision evaluating the credibility of a complainant must consider the evidence in its whole context and address any internal contradictions. He cannot ignore evidence that goes against the conclusion.[2]

The trier of fact should not place much weight on exculpatory stories in absence of evidence supporting the theory.[3]

  1. ↑ R. v. Ogden 2011 NSCA 89 at para 10; R. v. WH 2011 NLCA 59
  2. ↑ R. v. G., W., 1999 CanLII 3125 (ON CA) at 13,14, 17-19
    R. v. D.A., 2012 ONCA 200 (CanLII)
  3. ↑ R. v. Jenner 2005 MBCA 44, (2005), 195 C.C.C. (3d) at para. 21

Credibility of Accused (The W.D. Test)

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The purpose of the WD test is to "ensure that the jury know how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, and that they do not have to accept the defence evidence in full in order to acquit." [1]

Application
Where the accused an a complainant give contradictory evidence, the judge must apply the test from the case of R. v. D.W.[2]

The test in WD will primarily only apply to cases where the accused gives evidence.[3] However, the principles of DW will apply in any case where a crucial issue turns on creditability.[4]

The WD steps apply not only to the accused's testimony but also to other exculpatory evidence that emerges during trial.[5]

In the context of a voir dire, the principles of D.W. do not apply.[6] Guilt or innocences is not at issue and the standard of proof is one of reasonable doubt, thus an accused will be considered in the same manner as any other witness. Thus if the accused's version conflicts with a police officer, for example, then the court must determine who is telling the truth. If the court cannot decide who is telling the truth then the applicant must fail.

Where the accused and another witness testifies for the defence, the W(D) test is applied differently.[7]


Test
Where the defence calls the accused to give evidence that contradicts the crown evidence, the trier of fact must determine:

  1. whether to accept or reject the accused's evidence;
  2. whether the defence evidence causes the finder of fact to have a reasonable doubt of the guilt of the accused; or
  3. if the defence evidence is rejected, whether the finder of fact is satisfied of the guilt of the accused beyond a reasonable doubt based on the evidence that he accepts.

The order of the steps are not significant but the steps must all be applied separately.[8]

It is wrong when considering conflicting evidence of credibility to "weigh" one story over the other.[9] The trier of fact cannot "prefer" one story over the other or consider who is "most" credible. The “either/or” approach, preferring one over the other should be avoided.[10] To prefer one testimony over another has the effect of reversing the onus upon the accused.[11]

There is nothing preventing a judge from believing both the complainant and the accused even where they gave divergent or contradictory evidence[12]

The real issue is not who is telling the truth, but instead, whether, on the entirety of the evidence, the crown has proven the case beyond a reasonable doubt.[13]

Looking at Evidence as a Whole
The first two steps in the WD test require the "weighing [of] the accused's evidence together with the conflicting Crown evidence."[14]

It is essential that the court not look at any witnesses' evidence in a vacuum and instead look at it in relation to all the evidence presented as a whole. [15]

Rejection of Accused's Evidence
In explaining the reason to reject the accused's evidence it can be sufficient to justify it based on the reasoned acceptance beyond a reasonable doubt of a fact that conflicts with the evidence rejected. [16]

It is crucial that the judge not discount the accused's evidence for the reason that the complainant is believed. Otherwise, the defence is completely neutered before even testifying. [17]

Third Step
The court simply rejecting the accused story is not enough. [18] The purpose of the third part of the test is to convey that "a complete rejection of the [accused's] evidence does not mean that his guilt is established." [19]

It is an error to "use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt"[20]

"Fourth" Step
The Court of Appeal in British Columbia recommends an additional element to the D.W. test after the first step directing the judge that "If after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit".[21]

A judge cannot take into account roadside statements in the assessment of the accused's credibility.[22]

Other Considerations
It has sometimes been suggested that the proper approach should be to consider the accused's evidence first before looking at the complainant's evidence in order to avoid creating a burden upon the accused.[23] But this approach has had some critics.[24]

A judge may reject the accused evidence on the sole basis that it contradicts the accepted evidence.[25]

  1. ↑ R. v. Van 2009 SCC 22 at 23
    W(D) at p. 757
    R v JHS 2008 SCC 30 at para. 9
  2. ↑ R. v. D.W. [1991] 1991 CanLII 93
    R. v. Fowler, 1993 CanLII 1907 (BC C.A.)
    R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5
    R. v. McKenzie (P.N.) 1996 CanLII 4976 (SK CA), (1996), 141 Sask. R. 221 (Sask. C.A.) at para 4
    R. v. Rose (A.) (1992), 20 B.C.A.C. 7 (B.C.C.A.)
    R. v. Currie, 2008 ABCA 374
    R. v. B.G.S., 2010 SKCA 24
  3. ↑ R. v. Warren, 2011 CanLII 80607 (NL PC) at 24
  4. ↑ R. v. F.E.E., 2011 ONCA 783 at 104
  5. ↑ R. v. B.D., 2011 ONCA 51 (CanLII) at paras. 113-114
    R. v. Cyr, 2012 ONCA 919 (CanLII) at para. 50
  6. ↑ See R v Kocovic, 2004 ABPC 190
  7. ↑ see R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 paras. 20-23
  8. ↑ R. v. J.H.S., 2007 NSCA 12 - on appeal to SCC
  9. ↑ R. v. B.G.S., 2010 SKCA 24 at 9
  10. ↑ R v Challice (1979) 45 CCC 2d 546 (Ont CA) R v Morin 1988 CanLII 8 (SCC), [1988] 2 SCR 345
    R v Chan (1989) 52 CCC 3d 148 (Alta CA)
    R. v Jaura, [2006] O.J. No. 4157, 2006 ONCJ 385 paras. 12, 13
  11. ↑ R. v. Abdirashid, [2012] A.J. No 131 at para 6
  12. ↑ R. v. Nadeau 1984 CanLII 28 (SCC), [1984] 2 S.C.R. 570
  13. ↑ Canadian Criminal Evidence, Second Edition, by P.R. McWilliams, Q.C., at page 652; R. v. Nykiforuk (1946), 86 C.C.C. 151 (Sask. C.A.)
  14. ↑ R. v. Humphrey, [2011] O.J. No. 2412 (Sup. Ct.), at para. 152
    see also R. v. Newton, 2006 CanLII 7733 (ON CA) at para. 5
    R. v. Hull, 2006 CanLII 26572 (ON CA) at para. 5
    R. v. Snider [2006] O.J. 879, at para. 37
    R. v. Hoohing, 2007 ONCA 577 (CanLII) at para. 15
  15. ↑ R. v. Lake (2005), N.S.J. No. 506
  16. ↑ R. v. D. (J.J.R.), 2006 CanLII 40088 (ON CA), [2006] 215 C.C.C. (3d) 252 at para. 53 (C.A.) Doherty J. ("An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.")
  17. ↑ R. v. Lake, [2005] N.S.J. No 506 at para 21
  18. ↑ R. v. B.C.G., [2010] M.J. No. 290 (“reasonable doubt is not forgotten” simply because a trial judge rejects “the accused’s version of events.”)
    R. v. Liberatore, [2010] N.S.J. No. 556, at 15 stated WD prevents “a trier of fact from treating the standard of proof as a simple credibility contest”
  19. ↑ R. v. Gray, 2012 ABCA 51 at 40
  20. ↑ R. v. Dore 2004 CanLII 32078 (ON CA), (2004), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527
    R. v. H.(S.), [2001] O.J. No. 118 (C.A.)(QL), at paras. 4-6
  21. ↑ R. v. H.(C.W.) 1991 CanLII 3956 (BC CA), (1991), 68 CCC (3d) 146 (BCCA)
  22. ↑ R. v. Huff, [2000] O.J. No. 3487; leave to appeal to SCC denied [2000] S.C.C.A. No. 562
  23. ↑ R. v. Moose, 2004 MBCA 176 at para. 20
  24. ↑ R. v. D.A.M., 2010 NBQB 80 at para 53 and 56
    R. v. Schauman, 2006 ONCJ 304 at para. 6
    R. v. C.Y.L., [2008] S.C.J. No. 2
    R. v. Currie, [2008] A.J. No. 1212
  25. ↑ R. v. D. (J.J.R.) 2006 CanLII 40088 (ON CA), (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53
    R. v. M. (R.E.), 2008 SCC 51 (CanLII), (2008) 235 C.C.C. (3d) 290 (S.C.C.), at para. 66
    R. v. Thomas, 2012 ONSC 6653, at para. 26

Credibility of Persons from Other Cultures

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Assessing credibility through an interpreter requires careful consideration as it is a much more difficult endeavour.[1]

Courts should not put too much weight on perceived inconsistencies where evidence is conveyed through a interpreter.[2]

  1. ↑ Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25
  2. ↑ R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at p. 987 ("the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness")
    R. v. X.(J.), 2012 ABCA 69 (CanLII) at para. 13
    R. v. Zewari, [2005] O.J. No. 1953 (C.A.)(QL), at para. 4
    NAFF v. Minister of Immigration (2004), 221 C.L.R. 1 (H.C. Aust.), at para. 30
    Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25 ("It is much more difficult to assess the credibility of evidence given through an interpreter")

Credibility of Children

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There is no fixed formula for dealing with child witnesses.[1]

When assessing credibility of children, the same standards as adults apply. However, the standard of a “reasonable child” will differ from that of an adult. " Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult."[2] The evidence of a child must be approached on a "common sense" basis, "taking into account the strengths and weaknesses which characterize the evidence". [3]

Children recognize the world differently from adults, as such absence of details such as time and place are understandable and not necessarily fatal.[4]Stereotypes of children should be avoided.[5]

Regardless, the standard of proof for the Crown is always the same.[6]

For details on the appropriate approach to assessing the evidence of children, see R. v. B.G. [1990] S.C.R. 30 and R. v. W. (R.) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122

Helpful guidelines were suggested in R. v. A.F. 2007 BCPC 345:

  1. the credibility of child witnesses must be assessed carefully (in this context, “carefully” implies no bias either towards accepting or rejecting that evidence);
  2. the standard to be applied in assessing the credibility of a child witness is not necessarily the same as that applied to a reasonable adult;
  3. allowance must be made for the fact that young children may not be able to recount precise details and may not be able to communicate precisely the “when” and the “where” of an event, but their inability to do so should not lead to the conclusion that they have misperceived what has happened to them or who has done something to them;
  4. there is no assumption or presumption at law that a child’s evidence is less reliable than an adult’s;
  5. a common sense approach must be used in assessing the credibility of a child’s evidence, having regard to the age of the child, the child’s mental development and the child’s ability to communicate;
  6. inconsistencies, particularly concerning peripheral matters such as time or place, should not have the same adverse effect on the credibility of a child as it might in the case of an adult, having regard to the age and mental development of the child and other relevant factors;
  7. the burden of proof (guilt beyond a reasonable doubt) remains unchanged when the Crown case is founded upon the evidence of a child or children. Specifically, the rules pertaining to credibility as set out by the Supreme Court of Canada in R. v. D.W. do not change just because the Crown’s case is founded upon such evidence.
  1. ↑ R. v. Marquard, [1993] 4 SCR 223
  2. ↑ R. v. H.C. 2009 ONCA 56, (2009), 241 C.C.C. (3d) 45
  3. ↑ R. v. W. (R.), [1992] 2 SCR 122
  4. ↑ R. v. R.R.D., 2011 NLTD(G) 78 and R. v. B.E.M., [2010] B.C.J. No. 2787 (C.A.)
  5. ↑ supra
  6. ↑ R. v. P.B., [2011] O.J. No. 423 (S.C.J.); and R. v. T.P., [2010] N.J. No. 414 (P.C.)

Credibility of Police Officers

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It is not proper for courts to take the evidence of a police officer over that of a civilian by virtue of their position.

Lack of notes

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The absence of note taking can go to the reliability of the officer's testimony.[1] </ref>Where an officer is experienced they should be in the practice of taking notes of all relevant observations.

An officer is expected to take notes of all significant aspects of their investigation. Proper note taking is an important part of the fact-finding, as evidence should not be left to the whim of memory.[2]

It is not an acceptable excuse to not have notes where the officer “would remember it”.[3] Where notes are not taken the court is allowed to conclude that observation evidence was in fact not observed but a belief created after the investigation.[4] This is not necessarily always the case however and the judge may still accept the evidence.[5]

Memory of a police officer for things that occurred a considerably long time in the past where no notes were taken will has diminished reliability.[6]

See also

  • R. v. McGee, 2012 ONCJ 63


  1. ↑ R. v. Tang, 2011 ONCJ 525 at 53 [3] -- police officer evidence entirely ignored due to poor notes
    R. v. Odgers, 2009 ONCJ 287 (CanLII)[4]
    R v Machado, 2010 ONSC 277 at 120-123
  2. ↑ R. v. Lozanovski, [2005] O.C.J. 112 at p.3
  3. ↑ R v Zack 1999 OJ No 5747 (ONCJ) at p.2
    R. v Khan 2006 OJ 2717 at 18
  4. ↑ Zack 1999 OJ No 5747 at p2
  5. ↑ e.g. R v Thompson 2001 CanLII 24186 ONCA
    R v Bennett 2005 OJ No 4035 ONCJ)
  6. ↑ Khan (2006), O.J. 2717 at 17
    R. v. Hayes, 2005 OJ No 5057 at 9
    R v McGee, 2012 ONCJ 63 at 66

Credibility in Sexual Assault

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The doctrine of recent complaint in sexual assault cases does not exist in Canada. A failure to make a timely complaint in a sexual assault or abuse cannot be used to make an adverse inference of credibility.[1]

In sexual assault cases, it has been stated that a strict analysis of the reasonableness of the complainant's actions as "reactive human behaviour is variable and unpredictable" and there is the risk of "stereotypical thinking as to how a female complainant should react in a given scenario".[2]

However, the court may use evidence of the making of the complaint as "narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility.”[3] These statements cannot be used in “confirming the truthfulness of the sworn allegations”.[4]

  1. ↑ R. v. D.D., 2000 SCC 43
  2. ↑ R. v. Lally, 2012 ONCJ 397 at 105 to 113
  3. ↑ R. v. Dinardo, 2008 SCC 24 (CanLII), 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 37
  4. ↑ R v Dinardo, at para. 37
    see R. v. G.C., [2006] O.J. No. 2245 (C.A.); R. v. Fair 1993 CanLII 3384 (ON CA), (1993), 16 O.R. (3d) 1 (C.A.) at 21

Disbelief vs Fabrication

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There is a distinction between the disbelief of a witness and a conclusion of fabrication.

A disbelieved alibi has no evidentiary value. However, an alibi found to be fabricating can be evidence on which an inference of guilt may be made.[1]

Likewise, a disbelieved exculpatory statement has no value while a fabricated statement can be used in evidence.[2] The judge should consider the content of the statement and its connection with the charge.[3]

A finding of fabrication cannot be inferred simply on a finding of disbelief.[4] Fabrication must be found "on evidence that is independent from the evidence that contradicts or discredits the accused’s version of events".[5]

This evidence includes the circumstances where an accused made a disbelieved out-of-court statement, such that it suggests the accused's intent to mislead or deflect suspicion and shows a conscious knowledge that he committed an offence.[6]

  1. ↑ R. v. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, at paras. 57-58
    R. v. Coutts 1998 CanLII 4212 (ON CA), (1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras. 15-16
    R. v. O’Connor 2002 CanLII 3540 (ON CA), (2002), 62 O.R. (3d) 263 (C.A.), at para. 17
  2. ↑ R. v. Nedelcu, 2012 SCC 59 (CanLII) at para. 23 ("rejection of an accused's testimony does not create evidence for the Crown")
  3. ↑ O'Connor at para. 18
  4. ↑ R. v. Cyr, 2012 ONCA 919 (CanLII) at para. 78
  5. ↑ Cyr at para. 78
    O’Connor, at para. 21
    R. v. Coutts 1998 CanLII 4212 (ON CA), (1998), 126 C.C.C. (3d) 545 (Ont. C.A.) at paras. 15-16
  6. ↑ Cyr at para. 79
    O'Connor at para. 24, 26
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See Also

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