R. v. Stanton, 2021 NSCA 57
[67] Before embarking on an assessment of the trial judge’s reasons to determine whether he committed legal error, I set out below the legal principles relevant to appeals where credibility is pivotal:
• The focus in appellate review “must always be on whether there is reversible error in the trial judge’s credibility findings”. Error can be framed as “insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict” (R. v. G.F., 2021 SCC 20, para. 100).
• Where the Crown’s case is wholly dependent on the testimony of the complainant it is essential the credibility and reliability of the complainant’s evidence be tested in the context of all the rest of the evidence (R. v. R.W.B., [1993] B.C.J. No. 758, para. 28 (C.A.).
• Assessments of credibility are questions of fact requiring an appellate court to re-examine and to some extent reweigh and consider the effects of the evidence. An appellate court cannot interfere with an assessment of credibility unless it is established that it cannot be supported on any reasonable review of the evidence (R. v. Delmas, 2020 ABCA 152, para. 5; upheld 2020 SCC 39).
• “Credibility findings are the province of the trial judge and attract significant deference on appeal” (G.F., para. 99). Appellate intervention will be rare (R. v. Dinardo, 2008 SCC 24, para. 26).
• Credibility is a factual determination. A trial judge’s findings on credibility are entitled to deference unless palpable and overriding error can be shown (R. v. Gagnon, 2006 SCC 17, paras. 10-11).
• Once the complainant asserts that she did not consent to the sexual activity, the question becomes one of credibility. In assessing whether the complainant consented, a trial judge “must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant...” (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, para. 61).
• “Assessing credibility is not a science. It is very difficult for a trial judge 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…” (Gagnon, para. 20).
• The exercise of articulating the reasons “for believing a witness and disbelieving another in general or on a particular point…may not be purely intellectual and may involve factors that are difficult to verbalize…In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization” (R. v. R.E.M., 2008 SCC 51, para. 49).
• A trial judge does not need to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence (R.E.M., at para. 56).
• “A trial judge is not required to comment specifically on every inconsistency during his or her analysis”. It is enough for the trial judge to consider the inconsistencies and determine if they “affected reliability in any substantial way” (R. v. Kishayinew, 2019 SKCA 127, at para. 76, Tholl, J.A. in dissent; upheld 2020 SCC 34, para. 1).
• A trial judge should address and explain how they have resolved major inconsistencies in the evidence of material witnesses (R. v. A.M., 2014 ONCA 769, para. 14)
[68] In G.F., the Supreme Court of Canada has recently warned against the parsing of a trial judge’s reasons, particularly as they relate to the assessment of credibility. An appellant must be able to show actual error or, due to insufficient reasons, the frustration of appellate review. The appellate court “must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated” (para. 79).
[69] The Court in G.F. acknowledged the particular challenges faced by judges assessing credibility in sexual assault trials:
[81] As Slatter [R. v. Slatter, 2020 SCC 36] demonstrates, a trial judge's findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown's burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt.
Aucun commentaire:
Publier un commentaire