Justice Harris in R. v. T.T., 2020 ONCJ 368 recently elaborated on the issue of the meanings of these two terms. In criminal law especially, these two terms often come into play. How credible is the witness? How reliable is the witness? These terms often are responsible for the Judge basing his decision on the witness’ in order to make a decision.
In this case, the Judge notes that the case against TT depends on my assessment of the evidence of the various witnesses.
[12] In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his ability to accurately observe, recall and recount the events in issue.
A credible witness may give unreliable evidence as per R v. Morrissey, 1995 ONCA 3498 and R v H.C., 2009 ONCA 56. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt, as per R v. JJRD ONCA 2006 ONCA 40088.
[13] The Judge quotes Finlayson J.A. who stated in R. v. Stewart, 1994 ONCA 7208 that:
I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.
[14] At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented".
[15] I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.
[16] Both counsel have pointed out inconsistencies in the evidence of the various witnesses.
[17] In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said and what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.
[18] Crown counsel has argued that JLP had no motive to fabricate the allegations against TT. Counsel for TT disagreed with this. He argued however that KW had no motive to fabricate his allegations about JLP.
[19] The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process.[11] It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the witness’ evidence in the light of all of the other evidence[12]. Nor can I automatically equate a lack of evidence of motive to fabricate, to the proved absence of motive to fabricate.[13]
Analysis:
Criminal law is very complex. Often, the witness’ statements are critical in determining the innocence or guilt of the accused. It is therefore important to prepare thoroughly. Preparation is key. To take the time to run through the witnesses’ recollection; prepare other defence witness is important.
Witnesses have to say the truth and nothing but the truth. But, preparation of the witness before hand in terms of examination of chief and cross examination will help set the stage to determine the issues of credibility and reliability before hand and will give a needed confidence booster to the witness before they go on the stand.
At Shankar Law Office, we are happy to assist and guide you through whatever challenges you have in your life. Often, life throws us difficult challenges, including criminal charges that we have to fight. We are happy to work with you through these challenges in criminal law.
While we work throughout Ontario, we primarily work in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Port Elgin, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.
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