Oct 23, 2020

Credibility is Not an Either / Or Proposition

R. v. Esquivel-Benitez, 2020 ONCA 160 (CanLII)

A recent decision of the Ontario Court of Appeal has provided additional guidance about making findings on credibility.

In R. v Esquivel-Benitez, 2020 ONCA 160, http://canlii.ca/t/j5nrt the Court set aside a conviction for sexual assault on the basis of three errors made by the trial Judge on her findings of credibility. The sole issue in the case was whether the sexual intercourse was consensual.

The first and primary error was that the trial Judge analyzed credibility on the basis of whether to believe the reporting witness or the defendant. The Court of Appeal indicated that there was a third possibility (which in fact the trial Judge had acknowledged). The trial Judge could disbelieve the defendant, as compared to the witness, but still conclude that the burden of proof had not been met. The trial Judge should have specifically addressed that third possibility in her reasons.

A second error related to not addressing a possible motivation on the part of the witness. At the conclusion of the incident, the witness’ spouse entered the room and “flew into a violent rage”. The witness’ spouse persisted in questioning the witness about the incident afterwards. The Court said that the trial Judge should have addressed in her reasons this possible motivation for the report.

The third error was that the trial Judge commented more than once that the defendant was present when the witness testified as a part of her finding that the defendant had tailored his evidence to hers in his own testimony. The Court found these comments to be inappropriate since the defendant had the absolute right to be present in the courtroom during the trial.

It is interesting to note that two of these errors could have been avoided if the trial Judge addressed the issues appropriately in her reasons for decision. While criminal proceedings are different from professional discipline hearings, including having a different burden of proof, these points may still have some relevance for regulators.