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Evidence - Credibility (6). R. v. C.L.
In R. v. C.L. (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, this brought against a decision finding the appellant "guilty of sexual assault" where "he was sentenced to three years in custody".
Here the court sets out a three-step test for "assessing credibility in a trial where the key evidence arises from the conflicting testimony of the accused and the complainant":[41] There is a three-step framework to be followed when assessing credibility in a trial where the key evidence arises from the conflicting testimony of the accused and the complainant. First, if the trier of fact believes the accused’s evidence, they must be acquitted. Second, if the accused’s evidence is not believed but it leaves the trier of fact with a reasonable doubt, the accused must be acquitted. Third, even if the accused's evidence does not give rise to a reasonable doubt, the rest of the evidence proven by the Crown must satisfy the trier of fact beyond a reasonable doubt of the accused's guilt: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at para. 11.
[42] A trier of fact may accept some, all, or none of a witness’s evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. A.K., 2018 ONCA 567, at para. 7. This includes believing some elements of the evidence of the accused, and some evidence of the complainant. In this case, the only evidence before the jury was the testimony of the appellant and the complainant. . Heegsma v. Hamilton (City) [credibility and mental health]
In Heegsma v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of a JR Charter s.7 and s.15 "challenge the City of Hamilton’s by-law that prohibits installing tents and sleeping in public parks in the City and to challenge the City’s actions removing them from public parks in Hamilton during the relevant period" seeking declarations and damages.
Here the court allows the appellant's argument that the trial judge engaged in stereotypical reasoning:[70] The application judge did not do an individualized assessment of the appellants’ credibility and reliability. His central rationale for preferring the City’s evidence was that all, except for one the appellants, lived with mental health conditions and addiction issues which he said can affect perception and memory. On this basis, he concluded that their evidence was unreliable.
[71] It was an error for the application judge to assess the credibility and reliability of the appellants’ evidence on a group basis with no analysis of their specific evidence. Mental health and addiction, and their effects, are highly individualized. It was improper for the application judge to draw broad conclusions about the credibility and reliability of the appellants’ evidence, collectively, simply by asserting that mental illness and addiction can affect perception and memory: R. v. C.P., 2026 ONCA 333, 10 C.R. (8th) 394, at para. 14. It was also insufficient for the application judge to state, without particularization, that “some” of appellants’ evidence was hazy, and to rely on this to make adverse credibility findings against the appellants as a whole.
[72] More importantly, it was an error for the application judge to rely on myths and stereotypes about mental illness and addiction to find that the appellants’ evidence was not credible. This was an error of law: C.P., at para. 14; R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 41, 57. There may be individuals who live with mental health conditions or addiction issues whose memories are impacted by those circumstances. But the application judge’s apparent blanket assumption that the appellants’ evidence was unreliable because of those considerations perpetuates myths and stereotypes about some of the most vulnerable people in our society. It was incumbent on the application judge to analyze their evidence individually and, if he rejected it based on this individual assessment, to articulate why, without resorting to myths and stereotypes.
[73] In the absence of a proper analysis of the evidence, the application judge’s finding that there were no nighttime evictions cannot stand. This finding was fundamental to the application judge’s decision that the City did not violate the appellants’ s. 7 Charter rights and it therefore affected the whole decision.
[74] The City submits that, even if the application judge had conducted an individual assessment of the appellants’ credibility, he would have reached the same conclusion that there were no nighttime evictions. The City invites this court to conduct that assessment. I do not accept this submission. As the appellants point out, at least four of them refer to nighttime evictions in their affidavits or in cross-examination. It was incumbent on the application judge to consider and assess the evidence of the individual appellants in the context of the evidence as a whole without resorting to myths and stereotypes. It is not for this court to conduct this credibility assessment.
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