Balises permettant l'appréciation d'un témoignage

R. v. Snow, 2006 ABPC 92

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[67]            It is preferable to decide the credibility of the accused first. This point was made in R. v. L.(C.J.) (2005) 2004 MBCA 126 (CanLII), 197 C.C.C. (3d) 407 (Man. C.A.), wherein Freedman, J.A., delivering the judgment of the Court, at paras. 62-63 stated as follows:

“[62] It is preferable to decide on the credibility of an accused before that of a complainant, especially where the findings of fact are being made by a jury, because that will ensure that the protection afforded by the W.(D.) approach is provided. As this court has said, “[i]t is wise to follow the order as outlined in order to avoid possible confusion and error. The precise order ... [is] not immutable”: R.v. Scott (W.M.) (1997), 1997 CanLII 22841 (MB CA), 115 Man. R. (2d) 319 (C.A.), at para. 3, leave to appeal refused [1997] S.C.C.A. No. 350 (Q.L.). Ultimately, the order does not matter, provided it is clear that the fact-finder did not ever lose sight of the paramount principle of reasonable doubt.

[63] Had the judge here analyzed the evidence of the accused before he analyzed the evidence of S.L., I think it would have been very unlikely that there would be the present uncertainty about whether, in fact, the burden of proof has been shifted. The analysis of the accused’s evidence would have led the judge to explain, (I) why he disbelieved that evidence, and (ii) why he was not left in reasonable doubt by it, and (iii) why he had no reasonable doubt of the guilt of the accused, based on the evidence he did accept. In any case, with such an explanation we could be satisfied, as we now cannot be, that there was no shifting, albeit unintentional, of the burden of proof.”

 

[68]            The proper application of the W.(D.) principles demands that a proper assessment of the accused’s credibility be made. The assessment of credibility in a trial is never easy. Although various Court’s have set down some guidelines as to how that is to be done, there are no firm and fixed rules.

 

[69]            In R. v. White (1947) 1947 CanLII 1 (SCC), 89 C.C.C. 148 (S.C.C.), Estey, J., at p.151 stated as follows:

“The foregoing is a general statement and does not purport to be exhaustive. Eminent Judges have from time to time indicated certain guides that have been of the greatest assistance but so far as I have been able to find there has never been an effort made to indicate all the possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth , whether he is sincere and frank or whether he is biased, reticent and evasive. All these questions and others may be answered from the observation of the witness’ general conduct and demeanor in determining the question of credibility.”

 

[70]            In R. v. Covert (1916) 1916 CanLII 400 (AB CA), 28 C.C.C. 25 (Alta. C.A.), Beck, J.A., at p.37 stated as follows:

“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 or of the evidence of any other witness tending to throw discredit upon him; and

(5) That there is nothing in his demeanor while a 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.”