Judging credibility on appeal

R. v. B.A., 2011 ONCA 603 is a good example of how an appeal court can, sometimes, reverse a credibility finding. A trial judge, acting properly, must explain why a witness's evidence is accepted or rejected; the means giving reasons for rejecting a witness as not credible. If the factual basis for such rejection is unfounded the credibility finding is subject to review. The Court held:

[1]              The trial judge gave four reasons for finding that the appellant's evidence was not credible.  His first, and arguably main reason, was that the appellant was not forthright about the extent of his criminal record.  Indeed, the trial judge found that the appellant deliberately failed to disclose his complete record.  In our view, this was not a fair or tenable basis for rejecting the appellant's evidence because of the way the criminal record was put into evidence. 

[2]              As is often the case, defence counsel led the record at the beginning of his client's evidence.  Defence counsel obtained the record from the Crown.  The record he obtained, however, was not complete because it did not contain the appellant's three most recent convictions: one for impaired driving and two for breach of recognizance.  Defence counsel said that he was going to have his client admit the record.  He asked the appellant whether the record "accurately reflects your criminal record".  The appellant said "yes it does".  Of course it did not.  That it did not emerged in cross-examination. 

[3]              When the appellant volunteered that he had not yet moved out of the house because he was waiting for his licence suspension to end, the Crown asked whether the suspension was as a result of a criminal conviction.  The appellant readily admitted that he had recently been convicted for impaired driving.  Later, in response to questions from the Crown, the appellant admitted that he had been guilty of two breaches of recognizance.  As we read the record, in neither of these instances was the appellant being evasive or deliberately trying to hide his record.  That the record handed to him in his examination-in-chief was incomplete, appears to have been due to an inadvertent error by both Crown and defence counsel. 

[4]              In the light of this context in which the appellant's criminal record was introduced, the trial judge was not justified in using it to make an adverse credibility finding.  The trial judge did give other reasons for rejecting the appellant's evidence.  However, his error in finding that the appellant's initial mistake and acknowledgement of his record was not "innocent" irretrievably tainted his credibility finding