Canadian Criminal Procedure and Practice/Trials/Weighing Evidence

Findings of Fact
Only the trier-of-fact (the judge or jury) can make findings of fact unless there is an agreement on facts or an admission under s. 655 of the Code.

The testimony of a witness is not a fact until the trier finds it as so. It is only for the trier to decide. The trier may accept all, some, or none of what a witness says. If the witness is not believed on an issue, the evidence supporting it must be rejected.

Of the evidence accepted, the trier-of-fact may associate different weights to individual parts of the evidence.

When considering testimony evidence, its value comes down to four factors:
 * 1) perception,
 * 2) memory,
 * 3) narration, and
 * 4) sincerity

The court does have a limited power to edit statements and other forms of evidence as part of its jurisdiction over the trial process. This is usually applied where the evidence is unduly prejudicial.

The trier-of-fact may only convict where there has been "acceptable credible evidence" that was found to be factually correct. If "contradictory evidence" exists on an element of the charge the Defendant must be given the benefit of that doubt even if the Defence evidence is rejected.

In appropriate cases, regardless of the offence, it is reasonable to find guilt based solely on the evidence of a single witness.

When confronted with two contradictory stories, a judge does not need to make a finding of fact as to which story is correct.

Guilt should not be based a credibility contest or choice between competing evidence. This should "erode" the presumption of innocence and standard of proof beyond a reasonable doubt. However, it is not an error to make "finding of credibility as between the complainant and the accused" as long as all the steps of further analysis are taken.

Generally
Evaluating evidence involves the assessment of a witnesses credibility and reliability. These are distinct but related concepts referring to the witness' veracity (the former) and accuracy (the latter). There can be significant overlap. "Testimonial reliability" or "reliability" can often mean or include credibility.

Evaluating credibility is not a scientific process, and so there are no hard and fast rules to apply.

Factors
There are many tools for assessing the credibility and reliability of a witness' testimony:
 * 1) Internal inconsistencies: consider the inconsistencies with previous statements or testimony at trial.
 * 2) External inconsistencies: consider the contradictory and corroborative evidence between witnesses;
 * 3) Bias and Partiality: assess the partiality of witnesses due to kinship, hostility, self-interest, or any other motive to favour or injure the accused;
 * 4) Capacity: consider the capacity of the witness to relate their testimony:
 * 5) ability and opportunity to observe,
 * 6) ability to remember and
 * 7) ability to communicate the details of their testimony;
 * 8) Justifiable error: consider whether 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;
 * 9) consider the emotional state of the witness at the time (in a calm state or panicked state, for example);
 * 10) if recollection was recorded, consider the timing at which notes where made;
 * 11) consider the demeanor of the witness in the witness box (voice tone, body language, etc)
 * 12) consider the manner of response, being whether the witness was forthright and responsive to questions or was the witness evasive, argumentative or hesitant to answer (either at time of testimony or in prior statements);
 * 13) consider whether common sense suggests that the evidence is impossible or highly improbable or whether it was reasonable and consistent with itself and with the uncontradicted facts.
 * 14) considering whether a persons' words and actions are explained and whether it matches their emotional state at the time
 * 15) the reasonableness of a person's reaction to events
 * 16) evidence showing the demeanor of a complainant shortly following the offence can be useful to credibility. A person alleging a sexual assault or common assault may be quite upset when speaking to police, which may lend to credibility.
 * 17) whether there is any embellishment or minimizing of events. Likewise, an signs of attempts at recasting evidence to suit a partricular goal; putting himself in a good light

Minor inconsistencies
Inconsistencies between witnesses regarding things such as time, speed and distance, all of which are affected by subjective assessments, will usually have a limited effect on reliability unless glaringly different. Minor differences on details can in fact enhance, rather than detract, from the credibility of the witness as too much similarity will suggest collusion.

The courts should be hesitant to devalue a witnesses testimony based on minor or “perceived inconsistencies”. The benefit of the doubt should be given to the witness.

Major Inconsistencies
Where there are two equally credible witnesses there are a number of rules of thumb that can be applied:
 * the testimony must be contrasted with the undisputed facts to see which is the closer "fit".
 * The judge should consider what is reasonably recallable and not recallable by the particular witness.
 * the judge should favour the witness who is in a better position to know a particular fact.
 * where evidence is "incredible", there must be more undisputed facts to support this claim

Where there are major inconsistencies or contradictions with with key crown witnesses, or where there are otherwise conflicting evidence, the trier-of-fact would be "carefully assess" the evidence before.

Consistencies and Corroboration
There is no rule requiring that intoxicated complainants must be corroborated to be relied upon for conviction.

Where the testimony of a witness is uncontradicted, the trier-of-fact may rely on this in their assessment of credibility and reliability, however, need not accept the testimony as fact.

Motive and Bias
The judge may take into account the absence of evidence that there was a motive to fabricate the allegation.

Emotional State
Evidence of emotional state "may constitute circumstantial evidence confirming that the offence occurred... including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state."

Demeanour
Credibility may be assessed from demeanour. This can include "non-verbal cues" and "body language, eyes, tone of voice, and the manner" of speaking.

However, subjective view of demeanour can be unreliable indicator of accuracy.

A judge should not decide on credibility on the strength of demeanour evidence as it would be too "dangerous".

A decision on credibility based solely on demeanour of a witness is an error.

Demeanour evidence alone is not always considered a proper manner of assessing credibility.

Demeanour by itself cannot be sufficient alone to make a conclusion on credibility or conviction, especially where there are "significant and unexplained inconsistencies in the evidence.

Common Sense and Plausibility
It would be dangerous to uphold a conviction "on the basis that one party's version was less plausible than the other's."

Analysis of Testimony
Judge's must be very careful to avoid falling into an analysis which compares the two versions without assessing "the whole evidence to establish proof of guilt beyond a reasonable doubt."

A judge in his decision evaluating the credibility of a complainant must consider the evidence in its whole context and address any internal contradictions. He cannot ignore evidence that goes against the conclusion.

The trier of fact should not place much weight on exculpatory stories in absence of evidence supporting the theory.

Credibility of Accused (The W.D. Test)
The purpose of the WD test is to "ensure that the jury know how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, and that they do not have to accept the defence evidence in full in order to acquit."

Application Where the accused an a complainant give contradictory evidence, the judge must apply the test from the case of R. v. D.W.

The test in WD will primarily only apply to cases where the accused gives evidence. However, the principles of DW will apply in any case where a crucial issue turns on creditability.

The WD steps apply not only to the accused's testimony but also to other exculpatory evidence that emerges during trial.

In the context of a voir dire, the principles of D.W. do not apply. Guilt or innocences is not at issue and the standard of proof is one of reasonable doubt, thus an accused will be considered in the same manner as any other witness. Thus if the accused's version conflicts with a police officer, for example, then the court must determine who is telling the truth. If the court cannot decide who is telling the truth then the applicant must fail.

Where the accused and another witness testifies for the defence, the W(D) test is applied differently.

Test Where the defence calls the accused to give evidence that contradicts the crown evidence, the trier of fact must determine:
 * 1) whether to accept or reject the accused's evidence;
 * 2) whether the defence evidence causes the finder of fact to have a reasonable doubt of the guilt of the accused; or
 * 3) if the defence evidence is rejected, whether the finder of fact is satisfied of the guilt of the accused beyond a reasonable doubt based on the evidence that he accepts.

The order of the steps are not significant but the steps must all be applied separately.

It is wrong when considering conflicting evidence of credibility to "weigh" one story over the other. The trier of fact cannot "prefer" one story over the other or consider who is "most" credible. The “either/or” approach, preferring one over the other should be avoided. To prefer one testimony over another has the effect of reversing the onus upon the accused.

There is nothing preventing a judge from believing both the complainant and the accused even where they gave divergent or contradictory evidence

The real issue is not who is telling the truth, but instead, whether, on the entirety of the evidence, the crown has proven the case beyond a reasonable doubt.

Looking at Evidence as a Whole The first two steps in the WD test require the "weighing [of] the accused's evidence together with the conflicting Crown evidence."

It is essential that the court not look at any witnesses' evidence in a vacuum and instead look at it in relation to all the evidence presented as a whole.

Rejection of Accused's Evidence In explaining the reason to reject the accused's evidence it can be sufficient to justify it based on the reasoned acceptance beyond a reasonable doubt of a fact that conflicts with the evidence rejected.

It is crucial that the judge not discount the accused's evidence for the reason that the complainant is believed. Otherwise, the defence is completely neutered before even testifying.

Third Step The court simply rejecting the accused story is not enough. The purpose of the third part of the test is to convey that "a complete rejection of the [accused's] evidence does not mean that his guilt is established."

It is an error to "use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt"

"Fourth" Step The Court of Appeal in British Columbia recommends an additional element to the D.W. test after the first step directing the judge that "If after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit".

A judge cannot take into account roadside statements in the assessment of the accused's credibility.

Other Considerations It has sometimes been suggested that the proper approach should be to consider the accused's evidence first before looking at the complainant's evidence in order to avoid creating a burden upon the accused. But this approach has had some critics.

A judge may reject the accused evidence on the sole basis that it contradicts the accepted evidence.

Credibility of Persons from Other Cultures
Assessing credibility through an interpreter requires careful consideration as it is a much more difficult endeavour.

Courts should not put too much weight on perceived inconsistencies where evidence is conveyed through a interpreter.

Credibility of Children
There is no fixed formula for dealing with child witnesses.

When assessing credibility of children, the same standards as adults apply. However, the standard of a “reasonable child” will differ from that of an adult. " Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult." The evidence of a child must be approached on a "common sense" basis, "taking into account the strengths and weaknesses which characterize the evidence".

Children recognize the world differently from adults, as such absence of details such as time and place are understandable and not necessarily fatal. Stereotypes of children should be avoided.

Regardless, the standard of proof for the Crown is always the same.

For details on the appropriate approach to assessing the evidence of children, see R. v. B.G. [1990] S.C.R. 30 and R. v. W. (R.) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122

Helpful guidelines were suggested in R. v. A.F. 2007 BCPC 345:
 * 1) the credibility of child witnesses must be assessed carefully (in this context, “carefully” implies no bias either towards accepting or rejecting that evidence);
 * 2) the standard to be applied in assessing the credibility of a child witness is not necessarily the same as that applied to a reasonable adult;
 * 3) allowance must be made for the fact that young children may not be able to recount precise details and may not be able to communicate precisely the “when” and the “where” of an event, but their inability to do so should not lead to the conclusion that they have misperceived what has happened to them or who has done something to them;
 * 4) there is no assumption or presumption at law that a child’s evidence is less reliable than an adult’s;
 * 5) a common sense approach must be used in assessing the credibility of a child’s evidence, having regard to the age of the child, the child’s mental development and the child’s ability to communicate;
 * 6) inconsistencies, particularly concerning peripheral matters such as time or place, should not have the same adverse effect on the credibility of a child as it might in the case of an adult, having regard to the age and mental development of the child and other relevant factors;
 * 7) the burden of proof (guilt beyond a reasonable doubt) remains unchanged when the Crown case is founded upon the evidence of a child or children. Specifically, the rules pertaining to credibility as set out by the Supreme Court of Canada in R. v. D.W. do not change just because the Crown’s case is founded upon such evidence.

Credibility of Police Officers
It is not proper for courts to take the evidence of a police officer over that of a civilian by virtue of their position.

Lack of notes
The absence of note taking can go to the reliability of the officer's testimony. Where an officer is experienced they should be in the practice of taking notes of all relevant observations.

An officer is expected to take notes of all significant aspects of their investigation. Proper note taking is an important part of the fact-finding, as evidence should not be left to the whim of memory.

It is not an acceptable excuse to not have notes where the officer “would remember it”. Where notes are not taken the court is allowed to conclude that observation evidence was in fact not observed but a belief created after the investigation. This is not necessarily always the case however and the judge may still accept the evidence.

Memory of a police officer for things that occurred a considerably long time in the past where no notes were taken will has diminished reliability.

See also
 * R. v. McGee, 2012 ONCJ 63

Credibility in Sexual Assault
The doctrine of recent complaint in sexual assault cases does not exist in Canada. A failure to make a timely complaint in a sexual assault or abuse cannot be used to make an adverse inference of credibility.

In sexual assault cases, it has been stated that a strict analysis of the reasonableness of the complainant's actions as "reactive human behaviour is variable and unpredictable" and there is the risk of "stereotypical thinking as to how a female complainant should react in a given scenario".

However, the court may use evidence of the making of the complaint as "narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility.” These statements cannot be used in “confirming the truthfulness of the sworn allegations”.

Disbelief vs Fabrication
There is a distinction between the disbelief of a witness and a conclusion of fabrication.

A disbelieved alibi has no evidentiary value. However, an alibi found to be fabricating can be evidence on which an inference of guilt may be made.

Likewise, a disbelieved exculpatory statement has no value while a fabricated statement can be used in evidence. The judge should consider the content of the statement and its connection with the charge.

A finding of fabrication cannot be inferred simply on a finding of disbelief. Fabrication must be found "on evidence that is independent from the evidence that contradicts or discredits the accused’s version of events".

This evidence includes the circumstances where an accused made a disbelieved out-of-court statement, such that it suggests the accused's intent to mislead or deflect suspicion and shows a conscious knowledge that he committed an offence.

Related Topics

 * Verdicts
 * Proving Facts (inferences, presumptions, etc.)