Certaines considérations pertinentes dans l'appréciation de la crédibilité d'un témoignage

R. v. D.F.M., 2008 NSSC 312

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[11]         In R. v. Ross, 2006 N.S.P.C. 20, Judge MacDonald outlined at para.6 considerations which are helpful when assessing credibility of witnesses to determine where the truth is to be found.  Paraphrasing his comments, they include  the attitude and demeanor of the witness, the existence of prior inconsistent statements or previous occasions where the witness was not truthful, external consistency of the evidence (whether it is consistent with independent evidence accepted by the Court), the internal consistency of the testimony, whether witnesses have a motive to lie or to mislead the Court, and the ability of a witness who observed events to record them in memory.  Finally, Judge MacDonald indicated that it is most important that the trier of fact be concerned with the sense of the evidence, whether common sense when applied to the testimony of the witness suggests the evidence is impossible, improbable,  or unlikely, and what other results may arise when common sense is applied to the evidence.

Outils permettant à un juge d'apprécier la véracité d'un témoignage

R. v. Abdirashid, 2012 ABPC 22

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[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.

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.”

Certains facteurs humains ayant une incidence sur l'appréciation d'un témoignage

R. v. Comer, 2006 NSSC 217

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[96]         In weighing the testimony of the witnesses I am obliged to consider human factors which may affect the giving of perfectly honest evidence.  These factors may be phrased in the form of the following questions: (1) Did the witness have any particular reason to assist him or her in recalling the precise event that he or she attempted to describe?  (2)  Could 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?  (3)  What real opportunity did the witness have to observe the event?  Where was he or she when the event happened?  Was it a situation of panic or a relatively calm period and how would that affect recollection?  If the witness’ recollection was recorded when were the notes made?  (4) Did the witness have any interest in the outcome of the trial or any motive for either favouring or injuring one side or the other or was the witness’ evidence entirely independent?  (5) What was the memory capacity of the witness?  What was the appearance and demeanor of the witness in the witness box?  Was the witness forthright and responsive to questions or was the witness evasive and hesitant?  Was the witness argumentative?  (6) Was the witness’ testimony reasonable and consistent within itself and with the uncontradicted facts.

Certains outils permettant d'apprécier la crédibilité et la fiabilité d'un témoin

R. v. Jacquot, 2010 NSPC 13 

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[40]   There are many tools for assessing the credibility and reliability of testimony.  First, there is the ability to consider inconsistencies with previous statements or testimony at trial and with independent evidence which has been accepted by me.  Second, I can assess the partiality of witnesses due to kinship, hostility or self-interest.  Where an accused person testifies this factor must be disregarded insofar as his or her testimony is concerned, as it affects every accused in an obvious way, and may have the effect of reversing the onus of proof.  Third, I can consider the capacity of the witness to relate their testimony, that is, their ability to observe, remember and communicate the details of their testimony.  Fourth, I can consider the contradictory evidence as well as the overall sense of the evidence and when common sense is applied to the testimony, whether it suggests that the evidence is impossible or highly improbable.

La différence entre la crédibilité et la fiabilité

R. v. N.L.P., 2013 ONCA 773

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[25]      In R. v. C.(H.), 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability, at para. 41:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

 

[26]      Another relevant authority is R. v. Sanichar, 2012 ONCA 117 (CanLII), [2012] O.J. No. 748 (C.A.), appeal allowed 2013 SCC 4. The Supreme Court adopted the reasons of Laskin J.A. who dissented in this court. He noted, at para. 72 of his decision:

[A]lthough credibility and reliability are distinct concepts, they both involve factual determinations that, as my colleague notes, attract significant deference from a reviewing court: see R. v. R.W.B. (2003), 2003 CanLII 48260 (ON CA), 174 O.A.C. 198, at para. 9. An appellate court should not interfere with a trial judge's assessment of the reliability of a complainant's evidence simply because it would have arrived at a different result.

Revue du droit sur la fiabilité d'un témoignage

R. v. Thomas, 2012 ONSC 6653 

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[13]           Reliability generally relates to the testimonial factors of perception, memory, and communication whereas credibility relates to sincerity or honesty.  Reliability is particularly a concern in cases where witnesses are very young, where they testify about distant historical events, where their accounts are inconsistent or contradictory, where their accounts are unsupported by any other reliable evidence, where their observations are not recorded contemporaneously, where they have a poor opportunity to observe, or where some other shortcoming relevant to perception, memory, or communication may exist.  See, generally:  R. v C. (H.) (2009), 2009 ONCA 56 (CanLII), 241 C.C.C. (3d) 45 at para. 41 (Ont. C.A.); R. v. Sanichar, 2012 ONCA 117; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.); R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.); R. v. M. (B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.); R. v. G. (G.) (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.); R. v. McGrath, [2000] O.J. No. 5735 (S.C.J.).