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Evidence - Credibility (4). R. v. N.C. [reasons]
In R. v. N.C. (Ont CA, 2024) the Ontario Court of Appeal considered the adequacy of the trial judge's reasons for their credibility findings:[8] Turning to the first submission, we agree with counsel for the appellant that the trial judge, in rejecting the appellant’s evidence, did not provide sufficient reasons for his credibility findings. Instead, the trial judge’s reasons are conclusory. He gave only one reason for refusing to accept the appellant’s evidence: he found the appellant’s testimony about getting back into his own bed to avoid embarrassment, soon after M.L. had observed him, to be inconsistent with having asked the complainant: “do you think your friend would like to join us?” In cross-examination, the appellant stated that he was not embarrassed to ask the complainant if A.Z. wanted to join them. However, he indicated that was different than being embarrassed about M.L. finding him and the complainant in bed when they were trying to be discreet.
[9] In the circumstances, the trial judge had to provide some explanation as to why he found the appellant’s embarrassment in one situation and not the other to be inconsistent. This is particularly so given that the trial Crown did not expressly argue in closing submissions that this was an inherent inconsistency and defence counsel never had an opportunity to respond to the trial judge’s concern that the evidence was inconsistent. If the trial judge was going to reject the appellant’s evidence because of this inconsistency alone, he was required to raise it, explain why he thought it was inconsistent, and give the appellant an opportunity to respond. . R. v. J.A.
In R. v. J.A. (Ont CA, 2024) the Ontario Court of Appeal considered the appellate SOR for credibility issues:[25] In short, the trial judge’s conviction of the appellant depended on her credibility findings. These findings are entitled to deference. As the Supreme Court recently affirmed in Kruk, at para. 83:Trial judges have expertise in assessing and weighing the facts, and their decisions reflect a familiarity that only comes with having sat through the entire case. The reasons for the deference accorded to a trial judge’s factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge. In light of the practical difficulty of explaining the constellation of impressions that inform them, it is well-established that “particular deference” should be accorded to credibility findings. Appellate courts are comparatively ill-suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focussing narrowly, even telescopically, on particular issues as opposed to seeing the case and the evidence as a whole. [Citations omitted.] [26] The appellant has failed to establish that the trial judge’s credibility findings were tainted by any error. . Jarvis v. Oliveira
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
Here the court affirms that cross-examination on credibility is quite wide:[55] Ultimately, and no matter how respondent counsel sought to characterize it, the taxi fare evidence was evidence of bad character. In Racette v. Saskatchewan, 2020 SKCA 2, Tholl J.A. stated the general rule, at para. 23: “As a starting point, character evidence – good or bad – is generally inadmissible in a civil action”. There are exceptions to this rule, but none of them apply in this case.
[56] One exception arises during the cross-examination of witnesses. As this court said in Deep v. Wood et al. (1983), 1983 CanLII 3101 (ON CA), 143 D.L.R. (3d) 246 (Ont. C.A.), at p. 250: “cross-examination relating to general reputation for untruthfulness or to prior criminal convictions or to findings of professional misconduct involving dishonesty may be used to diminish the credibility of a witness” (emphasis added). Similarly, in Sidney N. Lederman, Michelle K. Fuerst, and Hamish C. Stewart, The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), the authors state that, subject to preventing vexatious and oppressive questions, “a witness can be asked nearly anything as a test of his or her credibility” (at p. 711). . R. v. Krawczyk
In R. v. Krawczyk (Ont CA, 2024) the Ontario Court of Appeal considered the deference accorded to a trial judge's credibility findings, and cited factors that may support truth-telling - including corroboration:[60] While credibility findings by a trial judge are accorded significant deference by this court, they are not immune from review where the trial judge has failed to weigh and assess a witness’s overwhelming credibility issues. As the Supreme Court stated in R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 82:[U]nder a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. [61] In this case, the trial judge took comfort from the fact that the PA was “adamant” in his testimony. Insofar as “adamant” indicates that the witness was “unshaken” or “unfailingly consistent with the evidence”, it could be a relevant consideration in a credibility analysis. However, the PA was not unshaken or unfailingly consistent.
[62] For example, the trial judge did not refer to the fact that, in his evidence in chief, the PA stated that he told the RCMP during his June 2018 interview that he had never done a drug deal with the appellant. He tried to back track later, stating that he had misunderstood the question, but this was a significant contradiction from his evidence that the appellant had brought him cocaine to sell in the months after the January meeting. It is trite law that a prior inconsistent statement is a potent factor in considering credibility: R. v. P. (G.), 1996 CanLII 420 (ON CA), 31 O.R. (3d) 504 (C.A.), at para. 46. In this case, it went to the heart of the reasonable suspicion issue: whether there was evidence that the appellant was already a drug dealer before he met the PA.
[63] In addition, being adamant on the critical issue is wholly in keeping with lying to receive the $400,000 compensation. In that context, it does not follow that because he was adamant, what he said was the truth. In any event, the PA was a seasoned court witness and liar, a factor the trial judge did not consider when he relied on his adamance.
[64] To summarize, the trial judge had to address the credibility and reliability problems of the PA. He was an unsavoury witness whose testimony alone, unaccompanied by contemporaneous notes, text messages or other confirmatory evidence, was relied on to decide the key issue on entrapment. While the trial judge acknowledged that the PA had credibility problems, he failed to address how any of those problems were overcome in this case other than by the witness’s adamance in his testimony or by the finding of corroboration from the attitude of the appellant, which I turn to now.
The Finding of Corroboration in the Willingness of the Appellant over One Year Later
[65] Where a witness is of unsavoury character, a trier of fact is required to look at their testimony with caution and to look for confirmation or corroboration from an independent source. To be confirmatory, the evidence must be capable of giving comfort that the witness’s material evidence can be trusted: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 39-40.
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[70] This was not a case, as in R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, where the trial judge’s reasons were sparse yet addressed the key issue. Here, the trial judge acknowledged the PA’s credibility issue in his reasons, but he failed to address how he reconciled it with his decision to accept that evidence as true. . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court cites the standard of review for credibility findings:[111] It is well established that credibility findings are the province of the trier of fact and “attract a very high degree of deference on appeal”: R. v Griffin, 2023 ONCA 559, 429 C.C.C. (3d) 231, at para. 81; R. v G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 99. In R.E.M. at para. 48, the Supreme Court recognized that “[a]ssessing credibility is not a science” and “warned against appellate courts ignoring the [trier of fact’s] unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the [trier of fact’s].”
[112] Mr. Candusso identifies three grounds that the Tribunal majority gave for rejecting his independent research explanation (addressed further below), but his analysis ignores one of the main reasons the Tribunal majority rejected as uncredible his evidence about why he bought Amaya shares: the totality of the circumstances and the significant evidence of his “timely, risky, uncharacteristic, and profitable trading in Amaya”: Merits Decision, at para. 258.
[113] I agree with the OSC that the Tribunal majority made no error in rejecting as uncredible Mr. Candusso’s denials that he had MNPI in the face of the evidence that his Amaya trading was timely, uncharacteristic, risky, and profitable. In all the circumstances, his denials were not “in harmony with the preponderance of probabilities disclosed by the facts and circumstances”: Springer v. Aird & Berlis LLP (2009), 2009 CanLII 15661 (ON SC), 96 O.R. (3d) 325 (S.C), para. 14, aff’d 2010 ONCA 287, 100 O.R. (3d) 575. Given the strong circumstantial case against him, the rejection of Mr. Candusso’s uncredible denials and alternative explanations was a proper basis for the finding that the allegations against him had been proven.
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