Tuesday, January 21, 2014

Assessment of Credibility

R. v. D.T., 2014 ONCA 44:

[76]       Appellate courts must give a very high degree of deference to trial judges' credibility determinations. As Bastarache and Abella JJ. explained in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 20-21:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in [H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401,] that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult an accused is entitled to know why the trial judge is left with no reasonable doubt.

(See also, Gagnon, at para. 10; Dinardo.)

[77]       The appellant raises five issues he says the trial judge ought to have considered when assessing D.B.'s credibility – these issues were also raised at trial:

·        D.B.'s description of the incidents lacked detail and context. The absence of detail casts doubt on the complainant's credibility. He described fleeting contact of between one and three minutes, in language that was, to use the appellant's counsel's expression, "robotic". See R. v. V.Y., 2010 ONCA 544, 334 D.L.R. (4th) 33, at para. 34, affirmed, 2011 SCC 22, [2011] 2 S.C.R. 172.

·        The trial judge failed to address the inconsistencies in D.B.'s evidence. Reliability problems led the trial judge to conclude that four of the six incidents could not sustain convictions, but he never considered whether the inconsistencies might impact upon D.B.'s credibility. See: R v. Burnie, 2013 ONCA 112, 294 C.C.C. (3d) 387, at paras. 43-48; R. v. Ezard, 2011 ONCA 545, 291 C.C.C. (3d) 78, at paras. 17-18.

·        The trial judge failed to consider the possibility that D.B.'s mother tainted his evidence by asking him three times whether the appellant touched him: R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201, at para. 89.

·        The complainant repeatedly broke down when confronted with inconsistencies in his evidence.

·        The trial judge never explicitly addressed the evidence supporting the defence theory that D.B. fabricated the allegations for any or all of three reasons: 1) to get attention from his parents; 2) to deflect attention from his problems at home and at school; and/or 3) to prevent the appellant from telling his parents about the sleepover incident in which he may have touched a girl.

[78]       Trial judges are not required to expressly consider every issue, discuss all of the evidence, or address every argument made by the defence: Vuradin, at para. 17; Dinardo, at para. 30; R.E.M., at paras. 32 and 64. While a failure to consider all of the evidence relating to the ultimate issue of guilt or innocence is an error of law (R. v. Morin, [1992] 3 S.C.R. 286, at p. 296), there is no obligation on a trial judge to record every aspect of the deliberation process: R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 46.

[79]       In this case, dealing with these issues would likely have improved the trial judge's credibility analysis. However, I do not accept that the trial judge erred in his conclusion on credibility because of what he did not say. My concern is instead with what he did say in support of his credibility finding.

[80]       An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.), at paras. 296-97, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 291, this court described the palpable and overriding error standard:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: [Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 5-6]. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [Schwartz v. Canada, [1996] 1 S.C.R. 254, at para. 35].

(See also H.L., at paras. 52-56.)

[81]       In J.N.C., the New Brunswick Court of Appeal applied this high standard and found the trial judge's credibility finding with respect to the complainant was subject to a palpable and overriding error. In that case, the complainant described an incident of sexual assault by her great-uncle as having occurred on his boat when she was two years old. The appellant testified he did not acquire the vessel until the complainant was four years old and she could not have been on the boat until she was five. He said she had been on it on a number of occasions after age five. Although the trial judge did not believe the incident occurred when the complainant said, he noted that inconsistencies as to times and locations should not be determinative for child witnesses. He proceeded to use the complainant's ability to recall of details about the boat to find her credible. At para. 16 of its reasons, the Court of Appeal quoted his conclusion:

… [the details about the boat] leave no doubt in my mind as to her credibility of that incident, as to what had happened on that boat as she described it in her testimony.

[82]       The New Brunswick Court of Appeal held that the trial judge's use of the complainant's descriptions of the boat to find her credible was a palpable error. The fact she could accurately describe the appellant's boat had nothing to do with her credibility regarding whether the incident occurred, because there was no dispute that she had been on the boat. The court held it was "illogical" to conclude that because the complainant could describe the boat, "she must have been telling the truth about everything else" (at para. 17). Because the court was convinced the trial judge "anchored his entire credibility findings on the complainant's description of the accused's boat", the palpable error was also overriding (at para. 18).

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