Barrister and Solicitor
Legal Writing and Research
Appeals - Fact-findings
R. v. Chhina (Ont CA, 2016)
Here the Court of Appeal canvasses the well-established law that appellate review of fact-findings is subject to a very high standard, that of 'palpable and overriding error':
 On appeal, credibility assessments are entitled to significant deference: R. v. Vuradin, 2013 SCC 38 (CanLII),  2 S.C.R. 639, at para. 11; R. v. Benson, 2015 ONCA 827 (CanLII), at para. 21. Absent palpable and overriding error, an appellate court will not intervene in a trial judge’s credibility analysis: R. v. Gagnon, 2006 SCC 17 (CanLII),  1 S.C.R. 621, at para. 20; R. v. D.T., 2014 ONCA 44 (CanLII), 305 C.C.C. (3d) 526, at para. 80. The rationale for such a high level of deference was succinctly summarized by Watt J.A. in R. v. Wadforth, 2009 ONCA 716 (CanLII), 247 C.C.C. (3d) 466, at para. 66:
Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise: M. (R.E.) at para. 49; R. v. Gagnon, 2006 SCC 17 (CanLII),  1 S.C.R. 621, at para. 20. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses’ credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: Gagnon at para. 20. In this case, the trial judge had significant and serious difficulties with the appellant’s evidence. On appeal, the appellant effectively asks this Court to dissect the trial judge’s reasons and scrutinize isolated comments that supported his decision to reject the appellant’s evidence. In my view, these comments, discussed in greater detail below, were reasonably open to the trial judge on the evidence before him and, in any event, were peripheral to the core of the Crown’s evidence that satisfied the judge of the appellant’s guilt. As a result, I would dismiss the appeal.