Simon's Megalomaniacal Legal Resources

Appeal - Grounds - Failure to Make Credibility Findings

This issue is similar to the larger issue of 'inadequate reasons', also located in this section.

. R v D.H.

In R v D.H. (Ont CA, 2016), a criminal case, the Court of Appeal discusses the adequacy of a judicial reasons for adverse findings against the credibility of a witness, and their treatment on appeal:

[34] A trial judge’s assessments of credibility are accorded very considerable deference on appeal, as long as the trial judge has sufficiently explained how significant discrepancies that could undermine credibility and reliability have been resolved. This court recently reiterated that principle in R. v. M. (A.), 2014 ONCA 769 (CanLII), 123 O.R. (3d) 536, at paras. 17-19:

[W]here a case turns largely on determinations of credibility, the sufficiency of reasons must be considered in light of the deference generally afforded to trial judges on credibility findings. It is rare for deficiencies in a trial judge's credibility analysis, as expressed in the reasons for judgment, to warrant appellate intervention: Vuradin, 2013 SCC 38 (CanLII), [2013] 2 S.C.R. 639, at para. 11; Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 26.

Nevertheless, the failure of a trial judge to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error: Vuradin, at para. 11; Dinardo, at para. 26; R. v. Braich, [2002] 1 S.C.R. 903, [2002] S.C.J. No. 29, 2002 SCC 27 (CanLII), at para. 23. After all, an accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt: R. v. Gagnon, [2006] 1 S.C.R. 621, [2006] S.C.J. No. 17, 2006 SCC 17 (CanLII), at para. 21.

Similarly, we take it as self-evident that a legal error made in the assessment of credibility may displace the deference usually afforded to a trial judge's credibility assessment and may require appellate intervention.

[35] While a trial judge is not required to resolve every inconsistency in the evidence, the trial judge “should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356; R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 31”: M. (A.), at para. 14. As the Supreme Court stated in R. v. Dinardo, at paras. 26-27, the failure to articulate how credibility concerns are resolved, particularly in the face of significant inconsistencies in a complainant’s testimony, may constitute reversible error, as an accused is entitled to know why the trial judge is left with no reasonable doubt.

. R. v. D.G.

In R. v. D.G. (Ont CA, 2021) the Court of Appeal considered the adequacy of reasons for decision:

[52] A trial judge is not required to refer to every aspect of the evidence that might have some impact on a witness’s credibility. In a case like this, that could encompass all of the evidence. Save for exceptional cases, it would undermine the work of trial judges if an appeal court were to re-assess credibility based on new arguments never made to the trial judge.

[53] As observed in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66:

…[t]he trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and a “very credible witness”, and concluding that her testimony on specific events was “not seriously challenged. It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt. [Footnotes omitted.]

[54] Similarly, in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 19, the court held that reasons are sufficient where they tell the appellant why the trial judge decided as he did, and:

…[t]he trial judge found the complainant’s evidence compelling, the problems in her evidence inconsequential, and the appellant’s concoction theories speculative. The reasons reveal that the trial judge accepted the complainant’s evidence where it conflicted with the appellant’s evidence. No further explanation for rejecting the appellant’s evidence was required.

[55] As noted in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31, the “inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues”. The reasons of the trial judge make it clear that he was alive to the issue that a witness’s evidence might be tainted by exposure to investigator’s questions: see para. 139 of reasons below.

. The Birkshire Group Inc. v. Wilkes

In The Birkshire Group Inc. v. Wilkes (Ont CA, 2018) the Court of Appeal held that the failure of the trial judge to refer to testimony of a material witness was, in the particular facts of the case, an error of law:

[10] We disagree. Considering the record as a whole, including the fact that the trial judge reopened the case to hear the evidence of the two witnesses after determining that it could bear on the material issue of the respondents’ credibility, the trial judge’s failure to address this evidence in his reasons creates problems on appeal. Credibility played an important role in the trial, in which the central issue was the scope and terms of the home renovation contract. The trial judge rejected the evidence of the appellants on several points and he explained why he preferred the evidence of the respondents. If Mr. Derewonko’s evidence had been accepted, it would have meant that a drawing that was introduced by the respondents at trial as being contemporaneous with Birkshire’s work, was created well after the litigation had commenced. Such evidence could have had a material effect on the credibility of the respondents, and indeed on the administration of justice.

[11] Although we specifically refrain from commenting upon the credibility of the evidence led by the appellants when they re-opened their case, it was incumbent on the trial judge to at least advert to the evidence and resolve it. This is particularly true given that the trial judge had pre-determined the materiality of the evidence, acknowledging that it was sufficiently probative of credibility to justify the exercise of his discretion in favour of re-opening the case.

[12] As this court noted in Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII), 131 O.R. (3d) 474, at para. 29, “[a] trial judge owes the losing party an explanation for rejecting the evidence of a key witness or witnesses … and, while the absence of such an explanation is not necessarily dispositive, it may go a long way toward putting the reasons beyond the reach of meaningful appellate review”. Unfortunately, that is the result in the present case. In the absence of any mention of these witnesses, and having regard in particular to the potential importance of Mr. Derewonko’s evidence to the question of the respondents’ credibility, it is impossible to know whether and why the trial judge accepted or rejected the evidence or if it impacted his credibility findings.

. Trotter Estate

In Trotter Estate (Ont CA, 2014) the Court of Appeal allowed an appeal against the dismissal of a summary judgment motion where the hearing judge dismissed critical evidence without explaining why it's credibility was impugned:

Where important issues turn on credibility, failure to make credibility findings amounts to reversible error: see Sagl v. Cosburn, Griffiths and Brandham Insurance Brokers Ltd., 2009 ONCA 388 (CanLII), [2009] O.J. No. 1879, at paras. 98-100.