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Evidence - Corroboration. R. v. Krawczyk
In R. v. Krawczyk (Ont CA, 2024) the Ontario Court of Appeal considered the deference accorded to a trial judge's credibility findings, and cited factors that may support truth-telling - including corroboration:[60] While credibility findings by a trial judge are accorded significant deference by this court, they are not immune from review where the trial judge has failed to weigh and assess a witness’s overwhelming credibility issues. As the Supreme Court stated in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 82:[U]nder a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. [61] In this case, the trial judge took comfort from the fact that the PA was “adamant” in his testimony. Insofar as “adamant” indicates that the witness was “unshaken” or “unfailingly consistent with the evidence”, it could be a relevant consideration in a credibility analysis. However, the PA was not unshaken or unfailingly consistent.
[62] For example, the trial judge did not refer to the fact that, in his evidence in chief, the PA stated that he told the RCMP during his June 2018 interview that he had never done a drug deal with the appellant. He tried to back track later, stating that he had misunderstood the question, but this was a significant contradiction from his evidence that the appellant had brought him cocaine to sell in the months after the January meeting. It is trite law that a prior inconsistent statement is a potent factor in considering credibility: R. v. P. (G.), 1996 CanLII 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at para. 46. In this case, it went to the heart of the reasonable suspicion issue: whether there was evidence that the appellant was already a drug dealer before he met the PA.
[63] In addition, being adamant on the critical issue is wholly in keeping with lying to receive the $400,000 compensation. In that context, it does not follow that because he was adamant, what he said was the truth. In any event, the PA was a seasoned court witness and liar, a factor the trial judge did not consider when he relied on his adamance.
[64] To summarize, the trial judge had to address the credibility and reliability problems of the PA. He was an unsavoury witness whose testimony alone, unaccompanied by contemporaneous notes, text messages or other confirmatory evidence, was relied on to decide the key issue on entrapment. While the trial judge acknowledged that the PA had credibility problems, he failed to address how any of those problems were overcome in this case other than by the witness’s adamance in his testimony or by the finding of corroboration from the attitude of the appellant, which I turn to now.
The Finding of Corroboration in the Willingness of the Appellant over One Year Later
[65] Where a witness is of unsavoury character, a trier of fact is required to look at their testimony with caution and to look for confirmation or corroboration from an independent source. To be confirmatory, the evidence must be capable of giving comfort that the witness’s material evidence can be trusted: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 39-40.
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[70] This was not a case, as in R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, where the trial judge’s reasons were sparse yet addressed the key issue. Here, the trial judge acknowledged the PA’s credibility issue in his reasons, but he failed to address how he reconciled it with his decision to accept that evidence as true. . R. v. Casarsa
In R. v. Casarsa (Ont CA, 2023) the Court of Appeal considered evidentiary 'corroboration':[8] The proper use of evidence that is equally supportive of competing versions, when assessing the credibility and reliability of those versions, was recently addressed by this court in R. v. Brown, 2022 ONCA 417, at para. 22. In Brown, the competing testimonial versions of the complainant and the accused both included the same sexual contact. Forensic evidence provided strong support for concluding that Mr. Brown had engaged in such sexual contact. The trial judge treated this forensic evidence as “corroborating” the complainant’s account. Mr. Brown appealed, arguing that the trial judged erred in doing so. Justice Miller denied this ground of appeal after finding that evidence that supports a complainant’s account does not cease to support that account because it also supports the account given by the accused. He reasoned that since judges are required to consider all of the evidence, the trial judge did not err in finding that this evidence provided some support for the complainant’s evidence.
[9] Notably, Miller J.A. qualified this holding by confirming that the forensic evidence “was neutral on the issue of consent”, which was the key issue in contest. This makes sense, given that the forensic evidence supported both competing versions, therefore providing no logical basis for preferring one of the competing versions over the other. It follows, in our view, that Brown does not hold that it is permissible to rely on evidence that equally supports competing accounts as a basis for accepting one of those accounts over the other, nor does it support the proposition that in a “he said/she said” case, a trier of fact is free to use evidence that supports both competing accounts selectively as supporting only the complainant’s account. If the Crown intended to suggest otherwise in oral submissions, we do not agree.
[10] We are accordingly persuaded that Brown does not answer Mr. Casarsa’s complaints, namely, that the trial judge acted unfairly in selectively using the confirming evidence as supporting the complainant’s evidence, but not his, and by using this evidence as a basis for ultimately choosing to believe the complainant’s account about the sexual assault over his denial.
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[12] We note that Mr. Casarsa did not appeal the trial judge’s reasoning on the basis that the evidence he relied upon was not capable in law of “corroborating” the complainant’s testimony. It is nonetheless worth pointing out that evidence is not “corroborative” simply because it confirms some of the testimony a witness provides. Technically, evidence is not corroborative unless it is independent proof that confirms a material feature of the criminal allegation: R. v. Baskerville, [1916] 2 K.B. 658 (Eng. C.A.). If all evidence does is provide some support for the credibility of a witness, it should not be described as “corroborative”. Doing so presents the risk that the impact of that evidence may be given exaggerated importance. In R. v. Brown, the court found the trial judge did not err by misusing the technical term “corroboration” after concluding, in context, that trial judge was using the term in its informal sense as evidence providing some support for the complainant’s testimony. Had Mr. Casarsa raised this issue in this appeal we would have disposed of it the same way. There is no basis for concluding that the trial judge did anything other than this in this case. Still, care should be taken in using the term “corroboration” to describe evidence that lends no more than incidental support to some feature of a witness’s testimony.
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