Sep 28, 2020

Perhaps one of the most difficult tasks for a lay disciplinary tribunal is articulating the reasons for a credibility finding. In Ahmed v College of Registered Nurses, 2017 MBCA 121, the panel relied upon the testimony of the patient in order to make a finding of sexual abuse. However, two difficulties arose in the panel’s assessment of the patient’s credibility. The allegations centred on whether the nurse’s examination involved the sexual touching of the patient’s breasts and labia. The Court found the panel’s decision unreasonable for two reasons.

The first was that the panel did not address whether the patient might have been honest but mistaken about the touching. While at first this conclusion might sound surprising given that there was expert evidence that the examination of this patient’s condition should not have involved the touching of those areas, the court remained troubled that the distinction (between honesty and reliability) was not discussed in the reasons. The patient’s “physical and emotional state on the night in question” may have affected her capacity to perceive and recall the events accurately. In addition, the Court was troubled at the number of inconsistencies in the patient’s various statements and said:

It is, of course, one thing to find one or two inconsistencies on peripheral matters to be immaterial; it is quite another to find a dozen or more inconsistencies to be immaterial without considering whether all of them, taken together, demonstrate an absence of reliability.

The second concern was that the panel appeared to use the patient’s prior consistent statements as proof of the credibility of her evidence. While prior consistent statements are sometimes helpful (e.g., to rebut an assertion that the witness is changing their story), it cannot be used “as evidence of the truth of the complainant’s in-hearing testimony”.

The finding was overturned and the Court sent the matter back for consideration of whether another hearing was warranted.