Simon's Megalomaniacal Legal Resources

Evidence - Witness Embellishment

. R. v. Donnelly

In R. v. Donnelly (Ont CA, 2023) the Court of Appeal considered the effect of a witness' 'lack of embellishment' in their testimony:

(c) Lack of Embellishment

[36] Nor do I agree that the trial judge impermissibly relied on the complainant’s lack of embellishment of her evidence to bolster her credibility. I see nothing in the trial judge’s reasons to indicate that he inappropriately reasoned that because the complainant’s allegations could have been worse, they are more likely to be true: R. v. Kiss, 2018 ONCA 184, at para. 52. Rather, the trial judge was entitled to note that the appellant was being fair in her testimony and that her fairness supported his finding that she was credible: R. v. E.A.P., 2022 ONCA 134, at paras. 18-19.

. Taliano v. College of Physicians and Surgeons of Ontario

In Taliano v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered, in an administrative context, the presence or absense of a witness' embellishment in their testimony:

[62] In making this submission Dr. Taliano relied on the decision of the Court of Appeal in R. v. Alisaleh, 2020 ONCA 597. In that case, the trial judge addressed the complainant’s credibility in the following manner: “There are two important factors that I find enhance [the complainant’s] credibility.” She then went on to explain that one of those factors was her view that the complainant had not embellished her evidence. According to the trial judge the complainant had given a “measured” and “understated” description of the assault.

[63] The Court of Appeal noted, at para. 13, that the Crown conceded “that the trial judge erred in finding that the complainant’s credibility was enhanced because she did not appear to exaggerate her allegations against the appellant.” The Court then stated, at para. 16:

To be clear, it is not an error to simply note that there is an absence of embellishment in the complainant’s testimony. This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility. However, it is wrong to reason that because an allegation could have been worse, it is more likely to be true.