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Evidence - Credibility (4). R. v. E.R.
In R. v. E.R. (Ont CA, 2024) the Ontario Court of Appeal considered the SOR applicable to credibility and reliability findings on appeal:(1) Review of credibility and reliability findings of a trial judge
[4] The grounds of appeal raised by the appellant involve challenges to the trial judge’s credibility and reliability findings. As such, it is important to bear in mind the deference owed to a trial judge’s findings of credibility and reliability. An appellate court must review a trial judge’s reasons as a whole and functionally. Absent a palpable and overriding error or an error of law, an appellate court must not interfere with a trial judge’s credibility and reliability findings. An appellate court “must not finely parse the trial judge’s reasons in a search for error”: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 69, 76-82; R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 82-85. . R. v. Zhou
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement."
Here the court makes clear that the jury, not the judge, assesses credibility:[93] Fourth, the appellant argues that the trial judge failed to emphasize in his charge to the jury that the complainant was being untruthful when she told the appellant that she was poor as her explanation for asking the appellant for a laptop. The appellant says that the trial judge thereby failed to tell the jury that the complainant was a “liar”. It is up to the jury, and not the trial judge, to make credibility assessments: Mezzo v. R., 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 844-45; R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at paras. 208-209. In his jury charge, the trial judge made it clear that the complainant had acknowledged in her testimony that the reason she asked for a laptop was as compensation for the sexual assault and not because she was poor. In addition, the jury charge is to be read in the context of the closing submissions: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58. In this case, the closing address made by the appellant also highlighted this inconsistency in the complainant’s evidence. . R. v. D.B. [IMPORTANT - gratuitious accusations of D lying]
In R. v. D.B. (Ont CA, 2024) the Ontario Court of Appeal allowed appeal of historical sexual offence convictions, here on arguments of several issues of misapprehension of evidence.
Here the court considers the hazards of gratuitously accusing the defendant of lying, in light of the presumption of innocence:[40] In Laboucan, the Supreme Court of Canda held that while there is no absolute prohibition against considering an accused’s motive to lie in assessing their credibility, this type of submission is fraught with risk because it can potentially undermine the presumption of innocence. Accordingly, where the issue is raised at trial, juries should be instructed not to presume that an accused will lie to avoid conviction. Such an instruction is consistent with one of jury instructions’ central goals: to ensure jurors do not engage in assumptions or forms of reasoning that do not respect fundamental principles such as the presumption of innocence: see R. v. Hayles-Wilson, 2022 ONCA 790, 165 O.R. (3d) 97, at para. 31.
(c) A Correcting Instruction on the Implied Motive to Lie was Required
[41] The appellant argues that the trial judge’s failure to provide a limiting instruction on the Crown’s argument would have misled the jury, causing them to place undue weight on the Crown’s argument, and ultimately undermining the presumption of innocence.
[42] The respondent argues that no special instruction was required in this case because the Crown was simply encouraging the jury to conclude that the appellant was not credible based on inconsistencies and illogicalities in his evidence.
[43] I reject the respondent’s argument that the Crown’s closing did not engage in the problematic line of reasoning identified by the Supreme Court in Laboucan. The closing address, when read as a whole, expressly urged the jury to find the appellant’s testimony was concocted by the appellant “in order to walk away from these charges”. This was improper and offended the presumption of innocence. The trial judge should have corrected the Crown’s submissions: see Hayles-Wilson, at para. 34.
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[45] As discussed above, the evidence about the appellant's failure to do or say more after he was confronted with the allegations had no probative value insofar as it was adduced to show that he was guilty because an innocent person would have done more to "get to the bottom” of the allegations. The jury therefore should have been told not to rely on this evidence for that purpose, given the multiple innocent alternative explanations for the appellant's conduct. The failure to address the reaction evidence in the charge was extremely prejudicial. And the failure to address the Crown’s submission regarding the appellant’s motive to lie undermined the presumption of innocence and exacerbated the prejudice. The jury charge left the jury unequipped to fairly decide the case and a new trial is required: see Hayles-Wilson, at para. 35.[4] Given my findings on these grounds of appeal, it is not necessary to deal with the third issue. . R. v. De Flores Bermudez
In R. v. De Flores Bermudez (Ont CA, 2024) the Ontario Court of Appeal considers the SOR for 'confirmatory' evidence, which it finds here to be a "part of the trial judge’s credibility assessment":[21] ... A trial judge’s determination that a piece of evidence is confirmatory of or supports a witness’ testimony, and the weight to be given to such evidence, is part of the trial judge’s credibility assessment and fact-finding, which are accorded deference in the absence of a palpable and overriding error: R. v. H.P., 2022 ONCA 419, 414 C.C.C. (3d) 395, at para. 71; R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at paras. 8, 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568; and R. v. J.B., 2022 ONCA 214, at para. 34. . R. v. N.C. [reasons]
In R. v. N.C. (Ont CA, 2024) the Ontario Court of Appeal considered the adequacy of the trial judge's reasons for their credibility findings:[8] Turning to the first submission, we agree with counsel for the appellant that the trial judge, in rejecting the appellant’s evidence, did not provide sufficient reasons for his credibility findings. Instead, the trial judge’s reasons are conclusory. He gave only one reason for refusing to accept the appellant’s evidence: he found the appellant’s testimony about getting back into his own bed to avoid embarrassment, soon after M.L. had observed him, to be inconsistent with having asked the complainant: “do you think your friend would like to join us?” In cross-examination, the appellant stated that he was not embarrassed to ask the complainant if A.Z. wanted to join them. However, he indicated that was different than being embarrassed about M.L. finding him and the complainant in bed when they were trying to be discreet.
[9] In the circumstances, the trial judge had to provide some explanation as to why he found the appellant’s embarrassment in one situation and not the other to be inconsistent. This is particularly so given that the trial Crown did not expressly argue in closing submissions that this was an inherent inconsistency and defence counsel never had an opportunity to respond to the trial judge’s concern that the evidence was inconsistent. If the trial judge was going to reject the appellant’s evidence because of this inconsistency alone, he was required to raise it, explain why he thought it was inconsistent, and give the appellant an opportunity to respond. . R. v. J.A.
In R. v. J.A. (Ont CA, 2024) the Ontario Court of Appeal considered the appellate SOR for credibility issues:[25] In short, the trial judge’s conviction of the appellant depended on her credibility findings. These findings are entitled to deference. As the Supreme Court recently affirmed in Kruk, at para. 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. 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. 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. [Citations omitted.] [26] The appellant has failed to establish that the trial judge’s credibility findings were tainted by any error. . Jarvis v. Oliveira
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
Here the court affirms that cross-examination on credibility is quite wide:[55] Ultimately, and no matter how respondent counsel sought to characterize it, the taxi fare evidence was evidence of bad character. In Racette v. Saskatchewan, 2020 SKCA 2, Tholl J.A. stated the general rule, at para. 23: “As a starting point, character evidence – good or bad – is generally inadmissible in a civil action”. There are exceptions to this rule, but none of them apply in this case.
[56] One exception arises during the cross-examination of witnesses. As this court said in Deep v. Wood et al. (1983), 1983 CanLII 3101 (ON CA), 143 D.L.R. (3d) 246 (Ont. C.A.), at p. 250: “cross-examination relating to general reputation for untruthfulness or to prior criminal convictions or to findings of professional misconduct involving dishonesty may be used to diminish the credibility of a witness” (emphasis added). Similarly, in Sidney N. Lederman, Michelle K. Fuerst, and Hamish C. Stewart, The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), the authors state that, subject to preventing vexatious and oppressive questions, “a witness can be asked nearly anything as a test of his or her credibility” (at p. 711). . 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. . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court cites the standard of review for credibility findings:[111] It is well established that credibility findings are the province of the trier of fact and “attract a very high degree of deference on appeal”: R. v Griffin, 2023 ONCA 559, 429 C.C.C. (3d) 231, at para. 81; R. v G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 99. In R.E.M. at para. 48, the Supreme Court recognized that “[a]ssessing credibility is not a science” and “warned against appellate courts ignoring the [trier of fact’s] unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the [trier of fact’s].”
[112] Mr. Candusso identifies three grounds that the Tribunal majority gave for rejecting his independent research explanation (addressed further below), but his analysis ignores one of the main reasons the Tribunal majority rejected as uncredible his evidence about why he bought Amaya shares: the totality of the circumstances and the significant evidence of his “timely, risky, uncharacteristic, and profitable trading in Amaya”: Merits Decision, at para. 258.
[113] I agree with the OSC that the Tribunal majority made no error in rejecting as uncredible Mr. Candusso’s denials that he had MNPI in the face of the evidence that his Amaya trading was timely, uncharacteristic, risky, and profitable. In all the circumstances, his denials were not “in harmony with the preponderance of probabilities disclosed by the facts and circumstances”: Springer v. Aird & Berlis LLP (2009), 2009 CanLII 15661 (ON SC), 96 O.R. (3d) 325 (S.C), para. 14, aff’d 2010 ONCA 287, 100 O.R. (3d) 575. Given the strong circumstantial case against him, the rejection of Mr. Candusso’s uncredible denials and alternative explanations was a proper basis for the finding that the allegations against him had been proven.
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