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Evidence - Witness - General. R. v. Dennis [refusal to answer questions]
In R. v. Dennis (Ont CA, 2025) the Ontario Court of Appeal considered a situation where the criminal defendant appellant opts to testify, but refuses to answer some questions - here in an appeal and in the context of a criminal CCC 684 application for 'state-funded counsel':[2] The applicant was convicted of importing cocaine and resisting arrest. He hired two women to import four kilograms of cocaine into Canada from St. Maarten. At trial the applicant testified that his cousin was responsible for putting the cocaine in the women’s suitcases. He refused to answer questions put to him about the identity of his cousin, stating that he feared for his life and that he and his family had been threatened by his cousin’s associates.
[3] In convicting the applicant, the trial judge found that the refusal to identify the cousin damaged the applicant’s credibility, stating:The refusal to identify the cousin damages Mr. Dennis’ credibility. It is true that an accused has a right to silence at the investigatory stage and at the trial stage. However, although he never has a legal obligation to do so, if the accused elects to testify, he sacrifices his right to silence. Having chosen to give evidence on his own behalf he must bear the full responsibility that comes with that decision. An accused, like an ordinary witness, must answer all the questions put by the lawyers, subject only to the rules of relevance, admissibility, and privilege.
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There is no right to pick and choose what questions to answer and what not to answer. [citations omitted.] ....
[6] On appeal, the applicant intends to argue that the trial judge erred in failing to engage with the applicant’s explanation for why he would refuse to name his cousin, and automatically discounting the applicant’s credibility on the basis of that refusal. He says that his evidence should have been assessed in the same manner as that applied to an “unresponsive witness”, as set out in the framework in R. v. Hart, 1999 NSCA 45, 74 N.S.R. (2d) 165; namely, that the judge ought to have considered the reason for the unresponsiveness, the impact of the unresponsiveness, and the possibilities of ameliorative action. While he acknowledges that the trial judge was entitled to make the credibility findings that he did, he argues that the judge was required to “at least grapple with” the explanation given by the applicant. The applicant also intends to advance an error in principle in sentencing.
[7] The respondent argues that Hart does not apply. By opting to testify, the applicant was obliged to tell the truth, the whole truth, and nothing but the truth, and failed to so do. The respondent asserts that the governing case is R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, which sets out the consequences when an accused person refuses to answer questions. Hart, by contrast, applies when an accused person alleges infringements of his or her ss. 11(d) and 7 Charter rights because of a witness’s inability or refusal to answer questions in cross-examination.
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[12] The respondent concedes that the applicant lacks the means to obtain legal assistance. The crux of the application is whether the grounds of appeal are arguable.
[13] In my view, while the argument sought to be advanced on the conviction appeal is creative, it is not, in the face of Arradi, arguable.
[14] In Arradi, the Supreme Court of Canada held unequivocally that “[t]he refusal by a witness – even if he or she is the accused – to answer the questions put to him or her is an affront to the authority of the court” that can be punished by a finding of contempt: at paras. 34-35. When an accused person elects to testify but refuses to comply with their oath or affirmation, their reliability and credibility are implicated: Arradi, at para. 44; see also R. v. Omar, 2018 ONCA 599, leave to appeal refused, [2018] S.C.C.A. No. 398, in which Benotto J.A. stated at para. 23:Broadly speaking, contempt of court consists of any conduct that obstructs or interferes with the administration of justice or that shows disrespect for the court and its process: R. v. Glasner (1994), 1994 CanLII 3444 (ON CA), 19 O.R. (3d) 739 (C.A.), at p. 748. It includes a witness’s refusal to answer a question properly put to him or her at trial, including the identity of a person involved in criminal activity. [15] Thus, the obligation on an accused who chooses to testify to answer questions put to him or her is clear. Nothing in Arradi suggests that it is arguable that an accused who chooses to testify can be selective about the questions they wish to answer, nor, correspondingly, that there is an obligation on trial judges to consider any excuses for such refusal.
[16] I agree with the respondent that the applicant’s reliance on Hart in the context of an accused who has chosen to testify and refused to answer questions put to him, is misplaced. In Hart, the accused claimed that his right to make full answer and defence was infringed because a child witness for the Crown was unresponsive in cross-examination. This court’s decisions in R. v. Cameron (2006), 2006 CanLII 16078 (ON CA), 208 C.C.C. (3d) 481 (Ont. C.A.), and R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515, which both apply Hart and are cited by the applicant, each arise in the context of the right to make full answer and defence where a Crown witness is unavailable for cross-examination (Cameron), or unresponsive (Duong).
[17] Here, the only witness who refused to answer questions was the applicant himself. He was fully available, and he was unresponsive. In my view, notwithstanding the modest threshold under section 684, it is not arguable that the Hart framework applies where the accused himself is the unresponsive witness. . R. v. Polemidiotis [inconsistencies]
In R. v. Polemidiotis (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here against convictions for sexual assault.
Here the court considers the judicial assessment of testimonial inconsistencies:[37] I agree with the appellant that whether or not an inconsistency in a witness’ evidence (either with prior statements or with other evidence) is significant is a fact-specific issue. I also agree that inconsistencies on issues other than the actus reus are capable of being significant enough to give rise to concerns about the credibility or reliability of a particular witness. The assessment of the significance of any alleged inconsistency must be made in the context of the evidence and issues in the particular trial. However, it is well-established that a trial judge’s determination of the significance of inconsistencies in the evidence of a witness must be given considerable deference on appeal: R. v. Marshall, 2013 ONCA 113, at para. 11; R. v. Saleh, 2022 ONCA 735, at para. 22. In other words, absent legal error, it is up to a trial judge to assess the significance of inconsistencies to a witness’ credibility and/or reliability. . R. v. J.P. [inconsistencies]
In R. v. J.P. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here considering 'inconsistencies' in witness testimony:[16] The trial judge’s analysis reveals no error. His assessment of the appellant’s credibility and reliability are entitled to deference: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 81-82. The trial judge, who was aware of the defence position that the addition of details was in response to the Crown’s specific questions, was clearly (and in our view, justifiably) not persuaded by the argument that the differences in the appellant’s evidence were due to the way in which he was questioned. As the appellant’s counsel acknowledged, the omission from one part of a witness’s evidence of a material fact included later can be viewed as an inconsistency: see R. v. Hill, 2015 ONCA 616, 339 O.A.C. 90, at para. 45. The trial judge reasonably concluded that the appellant’s credibility was undermined by the inconsistencies between his accounts on direct and cross-examination and the fact that the appellant’s elaborations were always seemingly favorable to him or to his position that he only engaged in consensual sex with A.E. We see no error in the trial judge’s conclusion that this was an important factor (although not the only factor) that led him to reject the appellant’s testimony. . R. v. Beauvais
In R. v. Beauvais (Ont CA, 2023) the Court of Appeal considered a basic of witness evidence law:[18] It is well-established that a trier of fact can reject some, none, or all of a witness’s testimony: see e.g. R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 10; R. v. Powell, 2021 ONCA 271, at para. 40. ... . 9725440 Canada Inc. v. Vijayakumar
In 9725440 Canada Inc. v. Vijayakumar (Ont CA, 2023) the Court of Appeal noted that the court could accomodate a witness' time zone differences:[44] That it may have been difficult for Mr. Lin to have attended trial should not have been the end of the analysis. There was no explanation as to why Mr. Lin’s family could not have assisted him to use Zoom or other technology or why he could not have accessed such technology through a lawyer’s office or a court office. There was no dispute that Mr. Lin had access to a computer and that his wife and children were computer literate. With respect to the time difference, the court is able to accommodate time differences, for example, by beginning the proceedings earlier or later than usual: see, e.g., Guest Tek Interactive Entertainment Ltd. v. Nomadix, Inc., 2020 FC 860, at para. 32; R. v. Belem, 2017 ONSC 2213, at para. 11. Further, it would not have been necessary for Mr. Lin to find an interpreter in China to assist with his evidence; he could have sought a court-appointed interpreter here who could have assisted through Zoom or telephone. Finally, there was no evidence that Mr. Lin was ill or otherwise unavailable to attend trial.
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