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Evidence - Credibility (3). R. v. Kruk
In R. v. Kruk (SCC, 2024) the Supreme Court of Canada - after making a fundamental connection between 'credibility and reliability' findings on the one hand and 'common sense assumptions' on the other - addresses a framework for determining the appellate standard of review for "credibility or reliability assessments":(3) Summary
[92] For the reasons outlined above, the proposed rule against ungrounded common-sense assumptions should not be recognized as giving rise to an error of law. The rule is in no way analogous to the body of law protecting sexual assault complainants from myths and stereotypes, nor can it be justified as necessary to ensure fairness to the accused. It also treats any and all factual assumptions drawn in the course of testimonial assessments as errors of law and thereby represents an unjustified departure from well-established principles governing testimonial assessment and appellate standards of review.
[93] Without the rule in play, appellate courts are left to rely on the existing and well-established law on assessing a trial judge’s credibility or reliability assessments. For the utmost clarity, the applicable framework can be summarized as follows.
[94] First, where an appellant alleges that a trial judge erroneously relied on a “common-sense” assumption in their testimonial assessment, the reviewing court should first consider whether what is being impugned is, in fact, an assumption. Given the nature of how witnesses give evidence and the need to read the trial judge’s reasons as a whole, what might appear to be an assumption on its face may actually be a judge’s particular finding about the witness based on the evidence.
[95] Second, once satisfied that the trial judge did, in fact, rely on an assumption that is beyond the bounds of what common sense and the judicial function support, the reviewing court should identify the appropriate standard of review applicable to the impugned portion of the trial judge’s credibility or reliability assessment.
[96] The standard of review will be correctness if the error alleged is a recognized error of law. Nothing in these reasons should be taken to limit the scope of existing errors of law relating to testimonial assessments that this Court has previously approved. Such errors may include reliance on myths and stereotypes about sexual assault complainants, as well as any improper and incorrect assumptions about accused persons that run contrary to fundamental principles such as the right to silence and the presumption of innocence. Testimonial assessments may also become vulnerable to correctness review for reasonable apprehension of bias (S. (R.D.), at paras. 91-141), making a finding of fact for which there is no evidence (R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25; Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, at p. 604), and improperly taking judicial notice (see, e.g., R. v. Poperechny, 2020 MBCA 81, 396 C.C.C. (3d) 478). As discussed, reliance on stereotypes other than myths and stereotypes about sexual assault complainants, but which are similarly rooted in inequality of treatment, may also amount to errors of law, and it remains open to all parties to argue as much in future cases. The list of errors of law is not closed — but the rule against ungrounded common-sense assumptions is not on it.
[97] Absent an error of law, the standard of review will be palpable and overriding error. The reviewing court must first determine whether the erroneous reliance on the assumption is palpable, in that it is “plainly seen”, “plainly identified”, or “obvious” (see Housen, at paras. 5-6; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). Palpable errors in this context will include, for example, where the assumption in question is obviously untrue on its face, or where it is untrue or inapplicable in light of the other accepted evidence or findings of fact. Although trial judges are clearly best placed to make factual findings and assess the accuracy of generalizations, appellate courts can balance the need for deference to those findings with employing their own common sense to determine whether the presumption was clearly illogical or unwarranted so as to make out a palpable error. Appellate courts are routinely tasked with, for example, considering whether based on “logic and human experience” a particular piece of evidence was relevant or whether an accused’s after-the-fact conduct was consistent with that of a guilty person (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 715; see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 17). In the context of factual generalizations, so long as the assessment remains focused on whether there was any palpable error, such an exercise remains an integral part of the judicial function of a reviewing court.
[98] Once a palpable error has been identified, the reviewing court must also find that the erroneous reliance on the assumption was overriding, in that it is “shown to have affected the result” or “goes to the very core of the outcome of the case” (Clark (2005), at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). If it cannot be shown that the error was palpable and overriding, a trial judge’s assessment of credibility or reliability will be entitled to deference and there will be no basis for appellate intervention. . R. v. Kruk
In R. v. Kruk (SCC, 2024) the Supreme Court of Canada considers the role of 'common sense assumptions' in assessing testimonial credibility, and also the location of credibility findings as 'fact-findings' - thus falling under the 'palpable and overriding' standard of review:[72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.
[73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31 (CanLII); R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38 (CanLII)). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).
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[81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621).[4] With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony.
[82] The governing standard of review applicable to findings of credibility and reliability is well established: absent a recognized error of law, such findings are entitled to deference unless a palpable and overriding error can be shown (Gagnon, at para. 10, citing Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 74). Credibility and reliability findings typically do not engage errors of law, as at their core they relate to the extent to which a judge has relied upon a particular factor and how closely that factor is tied to the evidence. Although such findings may be overturned on correctness if errors of law are disclosed, in most cases it is preferable to review them using the nuanced and holistic standard of palpable and overriding error — which defers to the conclusions of trial judges who have had direct exposure to the witnesses themselves.
[83] Trial judges have expertise in assessing and weighing the facts, and their decisions reflect a familiarity that only comes with having sat through the entire case. The reasons for the deference accorded to a trial judge’s factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 12-18). In light of the practical difficulty of explaining the constellation of impressions that inform them, it is well-established that “particular deference” should be accorded to credibility findings (G.F., at para. 81). Appellate courts are comparatively ill-suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focussing narrowly, even telescopically, on particular issues as opposed to seeing the case and the evidence as a whole (Housen, at para. 14, citing R. D. Gibbens, “Appellate Review of Findings of Fact” (1991-92), 13 Advocates’ Q. 445, at p. 446).
[84] The unique nature of testimonial assessment also guides how reviewing courts approach their task on appeal. Appellate courts must be mindful of the acute practical difficulties trial judges face in articulating why a particular witness was believed or disbelieved, tasked as they are with interpreting the various impressions and inferences that arise from the evidence (Gagnon, at para. 20; see also R.E.M., at para. 28; G.F., at para. 81). An appellate court should examine a trial judge’s reasons as a whole and refrain from parsing their “individual linguistic components”, as such an invasive approach would “undermine the trial judge’s responsibility for weighing all of the evidence” (Gagnon, at para. 19; see also Housen, at para. 72; G.F., at para. 69; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 33; R.E.M., at paras. 35 and 54). The need to review the entire record and for a full, flexible and functional approach when scrutinizing the findings of a trial judge is tied to the nature of the decision-making process at trial: reasons for judgment “are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict” (R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 525).
[85] The palpable and overriding error standard strikes the appropriate balance between deference to the factual findings of the trial judge and the need for meaningful review of criminal cases on appeal. Although this standard is duly deferential to the trial judge’s unique vantage point and expertise, even under this more deferential standard, appellate courts must determine whether the trial judge’s findings on credibility and reliability are “the product of an evidence-based and context-specific assessment” of the witness’s testimony (R. v. Pastro, 2021 BCCA 149, 71 C.R. (7th) 296, at para. 67). Trial judges must “clearly articulat[e]” the basis for their assessments and point to “a nexus to the facts of the case” as opposed to relying on “assumptions about expected responses or conduct” (Tanovich, at p. 92). Yet, the proposed rule against ungrounded common-sense assumptions undercuts the rationale for the palpable and overriding error standard by inviting appeal courts to examine the specific language of particular common-sense reasoning and scrutinize it on a standard of correctness. The ensuing appellate review exercise quickly becomes highly interventionist, cumbersome, and almost entirely unpredictable.
[86] Invoking the proposed rule [SS: which was denied by the court], appellate courts have been invited to parse trial reasons, attack generic statements made in the course of credibility assessments, and frame any credibility findings based on human behaviour as impermissible stereotypes or common-sense assumptions untethered to evidence. In Perkins, Cepic, Roth, and J.C., the appeal courts quashed the convictions due to errors in the trial judges’ credibility assessments, concluding that the trial judges went beyond allowable common-sense inferences and engaged in reasoning not grounded in the evidence. In other cases, a review of the findings as a whole demonstrated that the trial judges had employed no unfounded assumptions and rather the credibility assessments had been conducted in relation to the parties and circumstances before the court. The jurisprudence in this area is variable, even volatile, and evinces the need for a more consistent approach to appellate review (see Perkins; Roth; Cepic; J.C.; see, contra, Pastro, at paras. 68-69; R. v. Greif, 2021 BCCA 187, at paras. 68-69 (CanLII); Adebogun; R. v. Al-Rawi, 2021 NSCA 86, 410 C.C.C. (3d) 385; R. v. K.B.W., 2022 SKCA 8; R. v. L.L., 2022 ONCA 50; R. v. Lapierre, 2022 NSCA 12; Kritik-Langer v. R., 2022 QCCA 657; R. v. Kavanagh, 2022 BCCA 225; R. v. D.B., 2022 SKCA 76, 415 C.C.C. (3d) 455; R. v. S.A., 2022 ONCA 642; R. v. S.M., 2023 ONCA 417).
[87] With respect, the Court of Appeal’s decision in Mr. Tsang’s case illustrates the microscopic form of appellate review this very Court has cautioned against. The Court of Appeal targeted specific word choices, approving certain formulations of the trial judge’s credibility findings while implying that even slightly different word choices would have been erroneous. For example, in holding that the trial judge did not rely on a prejudicial generalization in refusing to believe the complainant had physically expressed her interest in the accused on the dance floor, the court emphasized that the “trial judge did not conclude simply that [the idea] was ‘not capable of belief’” but that “it was not capable of belief in the circumstances” (para. 33 (emphasis in original)). Similarly, approving of the trial judge’s conclusion that it was unlikely the parties would have shared a drink because they were effectively strangers, the court held, “[i]mportantly . . ., the trial judge did not say [Mr. Tsang’s] evidence about sharing a drink was ‘unbelievable’, it was simply ‘unlikely’ to have occurred” (para. 40).
[88] The proposed rule also risks diverting the focus of the trial judge’s reasons on plausibility to issues of form over substance, creating a chilling effect against thorough and frank reasons. Under the rule, it would be permissible for a trial judge to find it implausible that x, y, or z would have occurred in the circumstances of the case — but it would be impermissible to plainly state the common-sense premise that underpins the finding of implausibility, for fear that an appellate court would deem that premise “ungrounded” in the evidence at trial. The unstated barometer underpinning plausibility is a generalized expectation about how events tend to unfold and how people tend to behave in particular situations, meaning that common-sense assumptions represent a necessary measuring stick against which to assess the plausibility of a narrative. Yet the proposed rule leads judges into a catch-22, as the judge’s reasons (read functionally and contextually) must provide both the “what” and the “why” (G.F., at paras. 68-70).
[89] This form of appellate review directly cuts against established principles and leads to arbitrariness in outcomes. It does not, in my respectful view, advance the interests of justice. To the extent trial judges are the ones who have heard the evidence, they are best placed to make the complex and multifaceted factual findings that culminate in fair and nuanced credibility assessments. Deference to trial judges’ assessments of that evidence and the words they choose to describe it is warranted.
[90] In general, the introduction of new errors of law has the potential to upset the established balance in relation to credibility and reliability findings. Review based on an error of law may invite a “yes-no” answer measured on a standard of correctness, which opens the door to undue scrutiny of matters properly before the trial judge. To some extent, the materiality inquiry associated with the rule against ungrounded common-sense assumptions — under which the appellant must show that such reasoning “mattered in arriving at the impugned factual finding” (J.C., at para. 100) — mitigates the categorical nature of an error of law. However, in my view, it remains preferable to assess whether an error has been made in the first place based on the palpable and overriding standard. An overriding error is necessarily material because it must be shown to have affected the trial judge’s decision — but it is important to emphasize that an overriding error affects not just an isolated finding of fact, which may or may not have played a role in reaching the outcome, but the trial judge’s decision as a whole. It is not enough for an appellant asserting palpable and overriding error to pull at leaves and branches and leave the tree standing; the entire tree must fall (South Yukon Forest Corp. v. Canada, 2012 FCA 165, 431 N.R. 286, at para. 46, cited in Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38, and Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 116).
[91] Overall, the palpable and overriding error standard fosters an appropriately holistic approach to appellate review. As compared to the invasive method associated with the proposed error of law, palpable and overriding error is far better attuned to the deference rightly afforded to trial judges’ factual findings, including with respect to credibility and reliability findings. There is simply no need for this Court to endorse a departure from that established approach — let alone one so substantial — by recognizing a new error whose far-reaching repercussions would reverberate across the entire criminal law. . R. v. Kruk
In R. v. Kruk (SCC, 2024) the Supreme Court of Canada considers the role of common sense assumptions in assessing testimony, here in a case which forecloses the creation of a rule against 'ungrounded common sense assumptions' as an error of law in evidence law:(a) The Role of Common Sense in Evaluating a Witness’s Testimony
[71] First, the proposed rule is incompatible with the often inextricable role common-sense assumptions play in credibility and reliability assessments. Testimonial assessment is largely based on inductive reasoning and the particular circumstances of the case: it requires the trier of fact to make assessments based on probable interpretations of the evidence (R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 111; R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 (S.C.J.), at para. 23). Testimonial assessment therefore necessarily depends on the life experience a trial judge brings to their task, which, in turn, informs the common-sense inferences they draw from what they see before them.
[72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.
[73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31 (CanLII); R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38 (CanLII)). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).
[74] Even the proponents of the rule against ungrounded common-sense assumptions accept that common sense is necessary and, to some extent, inevitable, to the task of testimonial assessment. The Court of Appeal in Mr. Kruk’s case acknowledged that in “working through the minefield of legal and evidentiary issues, trial judges apply their common sense to the evidence to reach sound verdicts” (para. 2), and indeed, “[r]elying on their life experience to assess the credibility of witnesses is a daily and appropriate exercise for trial judges” (para. 41). In J.C., the court held that there is no bar on relying on common sense or human experience to identify inferences arising from the evidence — otherwise, circumstantial evidence, which depends on bridging gaps between the evidence and the inference drawn using human experience, would not be admissible at all. The court also correctly observed that there is no bar on using human experience to draw inferences from evidence. Otherwise, many other well-established principles of evidence — such as the idea that fleeing the scene or destroying evidence after a criminal offence is generally proof of concealment of guilt — would also be put at risk.
[75] By prohibiting ungrounded common-sense assumptions, the proposed rule interferes with the necessary recourse to common sense as a part of testimonial analysis. Trial judges are uniquely tasked with assessing the testimony they hear and interpreting the range of possible inferences arising from the evidence. They must be able to rely not only on their judicial experience as fact-finders, but also on their common sense and the generalized expectations it generates about human behaviour. Trial judges will naturally rely on “ungrounded” assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions.
[76] The proposed rule’s rationale is belied by a contradiction inherent in its own logic. It prohibits relying on common sense to introduce new considerations not arising from evidence — while simultaneously acknowledging that common sense can be used as an interpretive aid, which necessarily involves importing considerations arising not from the evidence itself but from a judge’s accumulated life experience. It is effectively impossible to draw a clear boundary between using human experience to interpret evidence or draw inferences (which is permissible under the rule) and introducing new considerations into the evidence (which is not).
[77] According to the rule as described by the majority of the Court of Appeal below in Mr. Tsang’s case, impermissible reasoning is: “affected by implicit, unsupported assumptions about ‘normal behaviour’” (para. 53); “unsubstantiated, untethered to the evidence and a prejudicial stereotype” (para. 65); “assumptions with respect to human behaviour” (para. 73); “generalizations about normative behaviour [that] did not rest on the evidence” (para. 74); “unfounded” assumptions or “generalizations” (paras. 84 and 112); and “unsupported inferences” (para. 115). On the other hand, permissible reasoning includes: “. . . a conclusion about what this complainant is likely to have done in these circumstances” (para. 39 (emphasis deleted)); and “the class of inferences relating to behaviour that may fairly be drawn” and “not used to draw an inference that is ‘unfair and inaccurate’” (para. 40). Curiously, the Court of Appeal in Mr. Tsang’s case considered it permissible to infer that people who have recently met are unlikely to want to share drinking glasses, because such an inference is “based on common sense and [is] not prejudicial” (para. 40). Yet this inference is undeniably a generalization about human behaviour that was not grounded in any evidence.
[78] Given that a trial judge is inevitably bound to rely on a common-sense assumption at some point when assessing a witness’s testimony, the ill-defined requirement that such assumptions must be “grounded in evidence” would also compel counsel in criminal cases to lead direct evidence to establish a wide range of notions that are generally true. To return to the example from Mr. Tsang’s case, to properly be able to find that people who have just met are unlikely to share drinking glasses at a bar — putting aside whether this is actually the case — the court would require direct evidence, presumably from the witnesses themselves. This evidence might include how closely each witness typically interacts with strangers in bars, their personal hygiene habits, and any inclinations or aversions they may have to sharing drinks with people they do not know, as well as presumably the underlying reasons for all of these propositions. Such matters are mundane, take up inordinate amounts of trial time, and are often of minimal, if any, relevance to the alleged offence. Particularly in sexual assault cases, which are already fraught with complexities, the incredible complications this type of evidentiary obligation would occasion cannot be understated.
[79] In sum, the proposed rule is fundamentally unfaithful to the necessary and proper use of common sense when assessing the testimony of witnesses. Worse, the rule also fails to establish any discernable boundary between the permissible and impermissible uses of common-sense assumptions. There is no coherent method to determine what assumptions are sufficiently uncontroversial to be “grounded in the evidence”, nor how much evidence is required to “ground” them. Instead, as explained further below, the rule seems to reduce this question to what a particular reviewing court deems to be fair, accurate, or uncontentious. The rule thereby invites appellate courts to substitute their opinions about what generalizations are appropriate or instructive in any given circumstance for those of trial judges, improperly transforming their “strong opposition to [a] trial judge’s factual inferences . . . into supposed legal errors” (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 17; A.F. (Tsang), at para. 74). This dynamic creates uncertainty and unfairness on appeal. . R. v. P.B.
In R. v. P.B. (Ont CA, 2023) the Court of Appeal considered a complainant's degree of 'embellishment' as it influences their credibility:[16] As held by the Supreme Court of Canada in R. v. Gerrard, 2022 SCC 13, lack of embellishment cannot be used to bolster a complainant’s credibility, unless a witness has a motive to lie. This is because, “[w]hile identified exaggeration or embellishment is evidence of incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility ... [B]oth truthful and dishonest accounts can appear to be without exaggeration or embellishment”: R. v. Kiss, 2018 ONCA 184, at para. 52.
[17] Reading the impugned statements in the context of the reasons for judgment as a whole, we are not persuaded that they show that the trial judge impermissibly relied on the complainants’ lack of embellishment as an important factor to enhance the complainant’s credibility, as in R. v. Alisaleh, 2020 ONCA 587, at para. 17. As defence counsel acknowledged in oral submissions, the trial judge did not explicitly say that he considered that the complainants’ lack of exaggeration and embellishment bolstered their credibility. Defence counsel argued that this could be inferred based on the Crown’s submissions at trial. Whether or not such an inference can be made, however, we find that the complainants’ lack of embellishment was simply one feature amongst many mentioned by the trial judge in assessing their evidence.
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[21] A trial judge does not automatically fall into error simply by noting a complainant’s lack of embellishment or exaggeration in the reasons for judgment. In R. v. Kiss, this court upheld a sexual assault conviction even though the trial judge twice referred to a complainant’s lack of embellishment in his reasons, noting at para. 53 that:[T]here is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [22] Based on the reasons as a whole, we are similarly persuaded in this case that the trial judge simply cited K.B. and Y.S.’s lack of embellishment and exaggeration to explain why he did not reject their evidence. . Willick v. Willard
In Willick v. Willard (Ont CA, 2023) the Court of Appeal considers the deference accorded to a trial judge on credibility findings:[42] The appellants characterize the trial judge’s credibility findings as amounting to legal error. However, this court recognizes the particular advantage of trial judges in assessing the credibility of witnesses and defers to credibility findings in the absence of palpable and overriding error: Calin v. Calin, 2021 ONCA 558, at para. 16; Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, at paras. 66-67. Indeed, given the advantages of trial judges in assessing credibility, the Supreme Court has stated: “Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. Given the trial judge’s analysis set out above, there is no basis on which this court can reject the trial judge’s credibility findings. Each finding of credibility was open to the trial judge on the evidence before him. . R. v. Oake
In R. v. Oake (Ont CA, 2023) the Court of Appeal considered the appellate deference applied to credibility findings:C. GOVERNING PRINCIPLES
[15] Trial judges’ appreciation of the evidence and their credibility and reliability findings attract significant deference from this court. Absent palpable and overriding error, there is no basis for appellate intervention with the trial judge’s rulings on these issues: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. Appellate deference is particularly appropriate in relation to a trial judge’s resolution of credibility controversies. Assessment of credibility is the daily fare of trial judges, who are in a unique position to see and hear witnesses and, thus, determine the credibility and reliability of their evidence: R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66. . R. v. Diehl
In R. v. Diehl (Ont CA, 2023) the Court of Appeal considered the leading W.(D). case, here particularly regarding credibility:[8] In this case, the trial judge began his reasons by correctly setting out the test for the review of evidence set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and then noted that,W.D. does not apply to each individual piece of evidence but only to essential elements of the offence. When assessing credibility, I must examine both the internal consistency of a witness’s evidence as well as the consistency of that evidence with other witness’s evidence. I must apply the same level of scrutiny to all witnesses.
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In cases of this nature, the credibility assessment is the central issue and ultimately informs the findings that determine whether the Crown has proven its case beyond a reasonable doubt or whether or not the evidence as a whole raises a reasonable doubt.
Credibility speaks to veracity and truth telling. While reliability speaks to accuracy and trustworthiness. A motive to fabricate or lie are relevant factors that I may consider. What I must not do is permit a criminal trial to turn into a credibility contest where I simply pick one version of events over another. To do so undermines both the presumption of innocence and the burden of proof placed on the Crown.
The burden of proof never shifts to the defendant. Section 265(3)b provides that the complainant’s consent to sexual assault may be vitiated by fear or the application of force. I must be careful not to subscribe to any of the judicially recognized myths and stereotypes regarding sexual assaults. I must be aware of assumptions of how a victim of sexual assault typically or normally responds to such acts. Though, I must not rely upon or draw adverse inferences from any of these myths or stereotypes, I must nonetheless apply the same level of scrutiny to the complainant’s testimony as I do the testimony of other witnesses. See R. v. Greer [2009] ONCA 505 at paragraph six.
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I am mindful the defence cautions me to consider the notion that a consenting woman will calmly accept sexual disappointments as a potential myth or stereotype. [9] He then provided a summary of the evidence adduced by both parties, followed by an assessment of the credibility and reliability of the complainant’s evidence. It is immaterial whether the court assesses the evidence of the complainant before or after the evidence of the accused: R. v. Gerard, 2022 SCC 13. . R. v. Griffin
In R. v. Griffin (Ont CA, 2023) the Court of Appeal considered the law of credibility findings:[37] As a starting point, a trial judge’s credibility findings are entitled to particular deference: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11. Credibility findings should not be interfered with unless they “cannot be supported on any reasonable view of the evidence”: R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 7.
[38] Articulating reasons for findings of credibility is challenging. In reviewing credibility findings, an appellate court should not undertake a word‑by‑word analysis of the reasons. Further, a review of a trial judge’s reasons must not turn into a line-by-line search for errors: R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at paras. 13 and 33. Rather, an appellate court must examine whether the reasons, taken as a whole, reflect reversible error when considered within the context of the trial record. Credibility findings must also be assessed in light of the presumption of the correct application of the law: see G.F. at paras. 69, 81-82.
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