Un élément important dans l'appréciation de la crédibilité d'un témoin est de constater l'existence ou non de contradiction sur un enjeu important

R. v. C.H., 1999 CanLII 18939 (NL CA)

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[23]                       One important aspect to be considered in assessing credibility, is consistency or lack of it in statements made by the witness when addressing the matter in the witness box and on other occasions. It is critically important therefore that a trial judge deal with indicated inconsistencies when assessing credibility of an only, or a critical, witness testifying against an accused. As Galligan, J.A., observed in R. v. M.G. (1994), 1994 CanLII 8733 (ON CA), 73 O.A.C. 356; 93 C.C.C. (3d) 347 (C.A.) at p. 354-355 [C.C.C.]:

“Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

“The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles, J.A., speaking for the British Columbia Court of Appeal in R. v. B. (R.W.) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B.(2d) 260:

‘Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented.

‘In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between the complainant’s evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’s evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.’

“That statement was adopted by Finlayson, J.A., speaking for this court in R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C.(3d) 242 at pp. 252-4; 29 C.R.(4th) 143; 18 O.R.(3d) 509 (C.A.).” (Emphasis added.)

[24]                       No authority need be cited to support the proposition that observing demeanour is a major tool in the kit of a trial judge when assessing the credibility of a witness. However, as important as it is, credibility of a complainant accepted on the basis of demeanour alone, is not a sufficient basis to convict an accused where the allegations are credibly denied or there is other contradictory evidence. Finlayson, J.A., in R. v. W.S. (1994), 1994 CanLII 7208 (ON CA), 70 O.A.C. 370; 90 C.C.C.(3d) 242 (C.A.), at page 250 [C.C.C.] said:

“It is evident from his reasons that the trial judge was impressed with the demeanour of the complainant in the witness-box and the fact that she was not shaken in cross-examination. I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant’s allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness’ testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C.(3d) 153 at pp. 170-4; 26 C.R.(4th) 256; 16 O.R.(3d) 295 (Ont. C.A.), for a discussion on this subject.”