Witness credibility can substantially impact the outcome of a criminal trial. A witness who provides the court with consistent and believable testimony and helps the court understand the circumstances of the case can help a judge decide the guilt or innocence of the accused.
However, accurately analyzing witness credibility can be difficult. A recent Ontario Court of Appeal decision highlights the complexity of determining witness credibility and the consequences of an incorrect analysis.
Why Does Witness Credibility Matter?
Witness credibility refers to the perceived trustworthiness, reliability, and truthfulness of a witness’s testimony or evidence presented in court. In most cases, the judge and jury are responsible for evaluating the credibility of a witness based on several principles and factors, including:
- Consistency;
- Corroboration;
- Demeanor;
- Ability to remember or perceive;
- Motive or bias;
- Reputation; and
- Consistency during cross-examination.
It is essential to assess the overall believability of the witness in addition to the consistency of their testimony about the other evidence presented in the case. Witness credibility can have a significant impact on the outcome and verdict rendered in a criminal trial, as their testimony can help the court by, for example:
- Establishing facts of the case;
- Building a narrative;
- Providing context; and
- Corroborating other evidence.
Marijuana Found in Vehicle Following Motor Vehicle Accident
In R. v. Yang, the appellant was charged with the criminal offence of possession of a controlled substance for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. Marijuana was discovered in packaged parcels inside a bag that was exposed in the vehicle that the appellant was operating at the time of a motor vehicle accident.
Although the appellant’s wife owned the vehicle, he was the sole occupant at the time of the accident. The appellant was ultimately convicted of possessing 5.6 lbs of marijuana, which he appealed. The primary issue on appeal was the trial judge’s analysis of the credibility of the defence’s sole witness, who offered evidence on behalf of the appellant and testified that the marijuana was his.
Witness Claims Ownership of Marijuana
The appellant testified that he did not know the marijuana was in the vehicle and called on a witness to testify. The witness stated that he borrowed the appellant’s vehicle to travel to a farm where his medical marijuana was produced, as his wife had taken his truck to visit a friend. He testified that he had a medical marijuana licence for personal use and shared his crop with friends. The witness claimed he used the medical marijuana for pain relief due to a neck and spine injury. After returning from the farm, the witness claimed he had to take his children to school and tend to a business matter. As a result, he stated, he ultimately forgot to remove the medical marijuana and accompanying license from the appellant’s vehicle before returning it to him.
The witness explained to the Court that after the appellant’s arrest, a lawyer advised him not to tell the police that the marijuana was his. However, he later learned that the lawyer had misunderstood the terms of his medical marijuana licence.
Trial Judge Rejects Witness’s Testimony
The trial judge reviewed the legal principles he was obligated to apply when assessing the credibility of the exculpatory evidence offered by the witness. However, he rejected the witness’s testimony and described it as “not being capable of belief,” stating that it “[did] not pass the common sense test.”
Appellant Argues Misapprehension of Evidence
On appeal, the appellant argued that the trial judge mistakenly believed that the witness had his truck available to him at all times. However, the trial judge understood that his wife had borrowed a “car,” a vehicle different from the witness’s truck. As a result, the trial judge rejected two critical pieces of the witness’s evidence. The appellant argued that this material misapprehension of evidence constituted a substantial issue, creating a miscarriage of justice.
Conversely, the Crown argued that while the misapprehension occurred, it was not material given the trial judge’s other reasons for rejecting the witness’s testimony.
Witness Concerned About Self-Incrimination
The appellant also argued that the trial judge erred in reasoning that the witness testimony was not credible because the witness did not advise the police about the incident before testifying in Court. The trial judge stated that the witness failed to do this based on a misunderstanding of the law relating to the “failure to admit error.”
By waiting to testify in Court, the witness was protected by the Canada Evidence Act and section 13 of the Canadian Charter of Rights and Freedoms from having his testimony used against him. However, if he had immediately told the police that he owned the marijuana, he would have been self-incriminating and may have faced criminal charges himself.
Court of Appeal Finds Witness’s Choice to Admit to Marijuana Ownership at Trial Was “Prudent and Sensible Choice”
The appellant persuaded the Court of Appeal that the trial judge had erred concerning both grounds of appeal.
Concerning the “failure to admit error,” the Court found that the witness’s decision to wait until trial was a “prudent and sensible choice, given the state of the law.” The Court stated there is “no inconsistency between refraining from self-incriminating before a trial and being happy to be able to take responsibility during trial when it is safe to do so.”
Despite the Crown’s submissions that these errors were not material when viewed in the whole context, as the trial judge noted “several other problems” with the evidence, the Court disagreed.
Court of Appeal Orders Retrial
The question before the Court was “whether the material representation was essential to the trial judge’s reasoning.” The Court found that the trial judge engaged in an illogical or irrational line of reasoning in support of his verdict, as this reasoning error depended on the oversight of the trial judge relating to the relative legal jeopardy the witness would have been in by explaining his story before trial.
The Court of Appeal ultimately found that the trial judge erred in his analysis of the credibility of the defence’s witness. Therefore, the Court ordered a retrial.
Contact the Criminal Defence Lawyers at Barrison Law if You Have Been Charged With a Drug-Related Offence
If you have been arrested for a drug-related crime, your subsequent steps may impact the rest of your life. Being convicted for a drug-related offence can seriously affect your employment, personal life, and future opportunities. Therefore, it is vital to work with an experienced criminal lawyer who can help you build your defence to ensure your rights are protected, and you obtain the best possible outcome. Please contact our office online or call us at 905-404-1947 to schedule an initial consultation.