259
Veracity as
a Factor of
Credibility
16
I. Assessing the Veracity of a Witness’s Evidence .................
A. External Consistency .................................
B. Internal Consistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Common Sense .....................................
D. The Motive to Lie or Tell the Truth ......................
E. Embellishment—Or Lack Thereof ......................
F. Testimonial Demeanour ..............................
G. Non-Testimonial Demeanour Evidence ..................
H. The Witness’s Character for Truthfulness ................
II. Special Issues, Prohibitions, and Assessment Tools .............
A. The Rule Against Oath-Helping ........................
B. Use of Prior Consistent Statements .....................
C. Use of Evidence from Other Proceedings ................
D. Use of Evidence from Dierent Counts ..................
E. The Drawing of Inferences ............................
F. The Credibility of the Accused as a Witness ..............
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260 Part III Assessing the Credibility of Witnesses
I. Assessing the Veracity of a Witness’s Evidence
The assessment of the credibility of a witness in the sense of the truthfulness or
veracity of the evidence is, arguably, a more delicate matter than reliability. It is not a
function of science or mathematics or any strict formula. Rather, it is a question left
to the judgment of individuals and is the sole purview of the trier of fact:
Credibility must always be the product of the judge or jury’s view of the diverse ingre-
dients it has perceived at trial, combined with experience, logic and an intuitive sense
of the matter.1
The assessment of credibility is also “a matter within the competence of lay peo-
ple” because “[o]rdinary people draw conclusions about whether someone is lying
or telling the truth on a daily basis.”2 As mentioned above, however, the competence
of anyone, judges or lay people, to accurately determine a witness’s truthfulness is
a matter of long-time debate. A finding of credibility should not be based solely on
which person “made the better appearance of sincerity in the witness box.”3 Such an
arbitrary decision cannot be the basis of a just outcome, and lawyers, legal scholars,
and scientists have made reasonable and valid arguments that humans are not terribly
good at determining whether a person is telling the truth.4
Despite this, Canadian jurisprudence remains firmly fixed on the idea that a person
or persons applying their experience and logic can assess the truthfulness of a wit-
ness’s evidence. Our ability to detect truth and deception may be flawed and inversely
proportioned to our confidence, but it remains a keystone in the trial process. To
undertake the task, courts have oered various factors that can, or conversely can-
not, be considered. These are not static. Recently, some of the factors that previously
formed the foundation of many credibility assessments have been criticized (though
not eliminated as factors). For instance, demeanour has been called into serious ques-
tion as a method of truth assessment and yet the Supreme Court of Canada still con-
siders it a valid factor in testimonial analysis.5
A frequently quoted passage from O’Halloran JA of the British Columbia Court
of Appeal sets out a general sense of the trier of fact’s task. After dismissing assess-
ments based solely on appearances of truth-telling, he provided a framework for the
determination of veracity that provides useful starting points. These include:
1. The test must reasonably subject the story to an examination of its consistency
with the probabilities that surround the currently existing conditions.
1 R v Marquard, [1993] 4 SCR 223 at 248, 1993 CanLII 37.
2 R v Marquard, [1993] 4 SCR 223 at 248, 1993 CanLII 37.
3 Faryna v Chorny, 1951 CanLII 252, [1952] 2 DLR 354 at 356 (BCCA).
4 John Norris & Marlys Edwardh, “Myths, Hidden Facts and Common Sense: Expert Opinion
Evidence and the Assessment of Credibility” (1996) 38:1 Crim LQ 73.
5 R v NS, 2012 SCC 72.
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Chapter Veracity as a Factor of Credibility 261
2. Does the story harmonize with the preponderance of the probabilities that a
practical and informed person would readily recognize as reasonable in that
place and in those conditions?
3. The trial judge must go further than simply saying that they believe the witness,
but must say what evidence of the witness they believe is in accordance with
the preponderance of probabilities in the case and state their reasons for that
conclusion.6
The remainder of this section will deal with what may and may not be considered
in the assessment of credibility.
A. External Consistency
The veracity of a witness should be judged in a manner that provides the most
dependable method of evaluation. One of the principal factors that might provide
this dependability is consistency of the testimony with other independent evidence
that has been accepted.7 Put another way, “this includes not only consideration of
how similar or dierent the testimony in question is to other independent testimony
but includes how well it fits with what is known about time, place and circumstance.”8
The consideration of external consistency may be a more reliable indicator of
veracity than internal inconsistencies. Victims of traumatic events might become
confused about details and their account of events may shift over time. The value of
these internal inconsistencies is dependent on their nature and number. The evidence
of that same person measured against external, independent evidence or testimony
may be more eective in assessing truthfulness. A methodical examination of the
evidence of a witness through the lens of external consistency may help ground an
eective credibility assessment.9
Where a witness’s testimony makes sense in the context of other accepted evi-
dence, a judge will rightly consider this in the credibility assessment. External con-
sistency seems, however, to be used in one of two ways. The first is an averment by
courts of the oft-quoted test of whether the witness’s evidence harmonizes “with
the preponderance of the probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions.”10 This slightly
vague description appears to connote the idea that external consistency means how
much the witness’s evidence makes sense in the larger evidentiary picture. As valid
as this may be, it lacks some empirical quality.
6 Faryna v Chorny, 1951 CanLII 252, [1952] 2 DLR 354 at 357 (BCCA).
7 R v Pierce, 2017 BCSC 2469 at para 188.
8 R v Henry, 2020 ONSC 7276 at para 35.
9 R v JM, 2021 BCCA 263 at para 54.
10 Faryna v Chorny, 1951 CanLII 252, [1952] 2 DLR 354 at 357 (BCCA).
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