R. v. Abdirashid, 2012 ABPC 22
[7] Justice Cory’s analysis of reasonable doubt, as applied to credibility, was re-stated by the Supreme Court of Canada in R. v. C.Y.L. (2008), 2008 SCC 2 (CanLII), S.C.J. No. 2 and by the Alberta Court of Appeal in R. v. Currie 2008 ABCA 374, which emphasizes that the Defence evidence should be looked at first to determine if reasonable doubt exists after a credibility analysis of the accused’s testimony. This process avoids a court comparing the credibility of a Crown witness with that of a Defence witness and inadvertently placing an onus on the Defence.
[8] The determination of credibility is a complex task involving the court reviewing numerous aspects of the testimony presented. In the decision of R. v. Snow, 2006 ABPC 92, His Honour Judge Semenuk analyzed the criteria in assessing an accused’s testimony. In paragraph 70, His Honour Judge Semenuk refers to the decision of R. v. Covert (1916), 1916 CanLII 400 (AB CA), 28 C.C.C. 25 (Alta. C.A.), where Justice Beck at page 37 stated the following:
We are bound to presume the accused was innocent, until proved guilty; he gave all the available evidence and that evidence, if true, explained away the inference or presumption against him.
It will be objected, of course, that the magistrate may have disbelieved entirely the evidence on behalf of the accused, and that it was open to him to do so; but in my opinion it cannot be said without limitation that a Judge can refuse to accept evidence. I think he cannot, if the following conditions are fulfilled:
(1) That the statements of the witness are not in themselves improbable or unreasonable;
(2) That there is no contradiction of them;
(3) That the credibility of the witness has not been attacked by evidence against his character;
(4) That nothing appears in the course of his evidence or of the evidence of any other witness tending to throw discredit upon him; and
(5) That there is nothing in his demeanor while in Court during the trial to suggest untruthfulness. To permit a trial Judge to refuse to accept evidence given under all these conditions would be to permit him to determine the dispute arbitrarily and in disregard of the evidence, which is surely not the spirit of our system of jurisprudence.
[9] Further, in the case of R. v. McKay, 2011 ABPC 82, His Honour Judge Anderson provided insightful analysis of considerations in assessing credibility:
[14] Assessing the truthfulness and reliability of what a person says is a human process that everyone does in day to day life. It is not a function unique to trial judges although it is one of a trial judge’s core functions. In assessing credibility,
a trial judge must rely upon personal human experience but also judicial experience. For example, a judge can and will consider a person’s demeanour in assessing credibility as anyone would. That can include the person’s body language, inflections, confidence level, responsiveness, apparent reasonableness, and many other traits, some subtle, some not. On the other hand, a trial judge will know from judicial experience, that demeanor alone is a very poor indicator of reliability or truthfulness. Skilled liars can present very well.
[15] A more important question is whether the witness’s testimony hangs together. How plausible is it? That is not to say how normal is it but rather, is it logically connected to its context? How consistent is it with other evidence both from the witness and from other sources? If there are discrepancies or inconsistencies, are those consistent with honest mistakes through the frailty of human memory for example, or do they reflect a seemingly deliberate distortion? Does the witness have a motive to fabricate or distort the evidence? If two or more witnesses are testifying, is there evidence of collusion?
[16] A Court must have regard to what have been described as ‘testimonial factors’ which entails looking at testimony on at least three different levels. This includes an assessment firstly of the witness’s opportunity or ability to actually perceive what the witness claims to have perceived and is now being recalled and recounted on the witness stand. A second factor is the witness’s apparent ability to recall what was actually witnessed. The third factor is the witness’s ability to recount. Different people have different abilities in each of these areas, which a Court must recognize. These factors are particularly important when assessing the reliability of the witness, as distinct from the honesty of the witness. They are also particularly relevant in attempting to determine whether inconsistencies are compatible or irreconcilable.
[17] In assessing the honesty of a witness, a different set of testimonial factors come into play, which have little to do with the witness’s ability to perceive, recall and recount. They include factors such as bias, motivation to lie or any other factors that might lead a witness to deliberately distort the truth.
[10] I agree with Judge Anderson’s analysis in Mckay that the assessment of truthfulness is not a function unique to trial judges and it is something that is done by individuals on a day to day basis. However, it is my view that this process must be taken one step further when a judge
is required to make a decision on credibility. A judicial decision must go beyond what the average person does on a day-to-day basis and must relate specifically to the evidence heard. There is no room for “gut feelings”. A court must be in a position to enunciate the specific reasons why an accused person is not believed.
[11] As stated by Judge J. N. LeGrandeur in R. v. S.I.C., 2011 ABPC 261:
Determining credibility is an issue of fact, and it is a task that cannot be fulfilled by following any specific set of rules. Every witness, regardless of occupation, gender, nationality, age or other characteristic, is at the commencement of his or her evidence, presumed to be telling the truth. No one is entitled to greater credibility because of who or what they are. There is no hierarchy of witness credibility. It is only after the individual’s evidence has been tested and assessed that a finding of credibility can be made, if at all. The presumption of credibility, in the context of both truthfulness and reliability, is a fragile presumption. It may be displaced by the witness’s own testimony; the inconsistency of the witness’s testimony from an internal prospective; or with respect to the facts that are not in dispute. One cannot however, sweep away the presumed credibility of a witness without reason.
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