Simon's Megalomaniacal Legal Resources

Evidence - Demeanour Evidence

'Demeanour evidence' means a witness' observations of the emotional state of a person that they are testifying about. 'Witness demeanour' (a separate topic) means a witness' demeanour while giving testimony.

. R. v. Marsh

In R. v. Marsh (Ont CA, 2023) the Court of Appeal distinguishes two types of demeanour evidence:

[19] The word “demeanor” may be used in two contexts. One is the demeanor of a witness when testifying in court. A trial judge may consider the complainant’s demeanor when testifying, when assessing credibility, provided the judge does not place undue emphasis on it: R. v. J.M., 2023 ONCA 472, at para. 3.

[20] However, in this case, the relevant evidence was the complainant’s emotional state following the alleged incident, her out-of-court demeanor at the time. That is properly admissible circumstantial evidence that a trial judge is entitled to consider. The weight to be given to it is in the discretion of the trial judge: R. v. Varcoe, 2007 ONCA 194, at para. 33; R. v. J.A., 2020 ONCA 491, at paras. 16-17; R. v. Rose, 2021 ONCA 408, at para. 22; R. v. Vansnick, 2022 ONCA 822, at para. 5. In this case, the trial judge committed no error in considering this evidence in addition to other confirmatory evidence.

. R. v. R.K.

In R. v. R.K. (Ont CA, 2023) the Court of Appeal considered witness 'demeanour' evidence:

[39] While reliance on the demeanour of witnesses should be approached with caution, it is not improper to consider demeanour in assessing credibility: R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89 and R. v. J.L., 2022 ONCA 271, at para. 6.

. R. v. Staples

In R. v. Staples (Ont CA, 2022) the Court of Appeal briefly considered demeanour evidence:

[38] The starting point is that although its admission may be somewhat rare, there is no bar to the admission of demeanour evidence. It may be admitted where a witness has a basis for believing that an accused’s demeanour was unusual: R. v. Trotta (2004), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199 (Ont. C.A.), rev’d on other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453; R. v. Short, 2018 ONCA 1, 358 C.C.C. (3d) 337, at para. 54.