« Analyse des témoignages » : différence entre les versions

{{Currency2|June|2022}}

see [[Admissions de faits]]

{{CanLIIRP|Baldree|fqcws|2012 ONCA 138 (CanLII)|280 CCC (3d) 191}}{{perONCA|Feldman JA}} (2:1){{AtL|fqcws|43}} - appealed on other grounds at [http://canlii.ca/t/fz7b7 2013 CSC 35] (CanLII)</ref>

{{CanLIIRP|Morin|1ftc2|1988 CanLII 8 (CSC)|[1988] 2 RCS 345}}{{perSCC-H|Sopinka J}} (6:0) ( {{Tr}}« facts are not to be examined separately and in isolation with reference to the criminal standard")<br>

{{supra1|Morin}}{{AtL|1ftc2|40}} ( {{Tr}}« during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requires that each element of the offence or issue be proved beyond a reasonable doubt. Beyond this injunction, it is for the trier of fact to determine how to proceed")</ref>

{{CanLIIRP|DW|1fsmb|1991 CanLII 93 (CSC)|[1991] 1 RCS 742}}{{perSCC|Cory J}} (4:1){{atps|757-8}} (SCR) or 409 (CCC)<br>

{{CanLIIRP|Fleig|g633n|2014 ABCA 97 (CanLII)|572 AR 161}}{{TheCourtABCA}} (3:0){{atL|g633n|24}} ( {{Tr}}« primary concern of the framework in W(D) is that a trier of fact should not line up the Crown and defence evidence and select one over the other.")<br>

{{CanLIIR|Gerrard|jntwg|2022 CSC 13 (CanLII}}{{perSCC-H|Moldaver J}} ( {{Tr}}« It is immaterial that the trial judge assessed the complainant’s credibility before the accused’s; this does not automatically demonstrate that she reversed the burden of proof ")<br>

R. v. Carrière, 2001 CanLII 8609 (ON CA), [2001] O.J. No. 4157 (Ont. C.A.), at paras. 48-51 per Doherty J.A.<br>

R. v. S. (M.), 2008 ONCA 616, [2008] O.J. No. 3465 (Ont. C.A.), at para. 53 per Cronk J.A

{{CanLIIRP|Mathieu|1p9s4|1994 CanLII 5561 (QC CA)|90 CCC (3d) 415}}{{perQCCA|Brossard JA and Fish JA}}{{atL|1p9s4|61}} aff’d [http://canlii.ca/t/1frfr 1995 CanLII 79] (CSC), [1995] 4 RCS 46{{{perSCC|Lamer CJ}}, ("...triers of fact remain free, as they have always been in the past, to accept all, part or none of the evidence of any witness... . The evidence of each witness must be considered in the light of all the other evidence.")<bR>

{{CanLIIRP|Howe|1jkc6|2005 CanLII 253 (ON CA)|192 CCC (3d) 480}}{{perONCA-H|Doherty JA}} (3:0){{atL|1jkc6|44}} ( {{Tr}}« A trier of fact is entitled to accept parts of a witness’s evidence and reject other parts.  Similarly, the trier of fact can accord different weight to different parts of the evidence that the trier of fact has accepted.")<br>

{{CanLIIRP|DH|gsjcl|2016 ONCA 569 (CanLII)|338 CCC (3d) 251}}{{perONCA|Feldman JA}}{{atL|gsjcl|34}} ( {{Tr}}« A trial judge’s assessments of credibility are accorded very considerable deference on appeal, as long as the trial judge has sufficiently explained how significant discrepancies that could undermine credibility and reliability have been resolved.")

{{CanLIIRP|Trotter Estate|gfdfc|2014 ONCA 841 (CanLII)|328 OAC 167}}{{perONCA|Benotto JA}} ( {{Tr}}« Where important issues turn on credibility, failure to make credibility findings amounts to reversible error")

{{CanLIIRP|Slatter|j2r66|2019 ONCA 807 (CanLII)|382 CCC (3d) 245}}{{perONCA|Pepall JA}}{{atsL|j2r66|117| à 118}} ("...credibility and reliability are different concepts. Credibility deals with a witness's veracity or truthfulness, while reliability addresses the accuracy of a witness's testimony. Accuracy engages consideration of a witness's ability to accurately observe, recall, and recount...")<br>

{{CanLIIRP|GF|jfwh1|2021 CSC 20 (CanLII)|SCJ No 20}}{{perSCC|Karakatsanis J}} at para 82 ( {{Tr}}« The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty")

{{CanLIIR|Thomas|fv11d|2012 ONSC 6653 (CanLII)}}{{perONSC|Code J}}{{atL|fv11d|13}} ( {{Tr}}« Reliability generally relates to the testimonial factors of perception, memory, and communication whereas credibility relates to sincerity or honesty.")

{{supra1|GF}} at para 82 ( {{Tr}}« appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.")

{{supra1|GF}} at para 82 ( {{Tr}}« A trial judge’s determination to accept or believe inculpatory witness evidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability")<br>

See: {{CanLIIRP|Gagnon|1n54q|2006 CSC 17 (CanLII)|[2006] 1 RCS 621}}{{perSCC|Bastarache and Abella J}} (3:2){{atL|1n54q|20}} (It is not always possible to "articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:")<br>

{{CanLIIRP|REM|20xm7|2008 CSC 51 (CanLII)|[2008] 3 RCS 3}}{{perSCC-H|McLachlin CJ}} (7:0){{atL|20xm7|49}} ("[A]ssessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:")<br>  

{{CanLIIRPC|Faryna v Chorny|gc4lv|1951 CanLII 252 (BC CA)}}{{perBCCA|O'Halloran JA}} ( {{Tr}}« The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which is a practical and informed person would readily recognize as reasonable in that place and in those conditions.")<br>

{{CanLIIRP|O’Connor|1cgld|2002 CanLII 3540 (ON CA)| OR (3d) 263}}{{perONCA|O'Connor ACJ}} (3:0){{atL|1cgld|38}} (statement that "is merely disbelieved is not evidence that strengthens the Crown’s case")<br>

{{CanLIIRP|Nedelcu|ftmw1|2012 CSC 59 (CanLII)|[2012] 3 RCS 311}}{{perSCC-H|Moldaver J}} (6:3){{atL|ftmw1|23}} ( {{Tr}}« rejection of an accused's testimony does not create evidence for the Crown")<br>

{{supra1|O'Connor}}{{atL|1cgld|23}} ("...when it is an accused's testimony which is disbelieved, the circumstance in which the accused gave the disbelieved version of events -- as part of the trial process itself -- is not considered to be independent evidence of fabrication permitting an adverse inference against the accused:... Before an adverse inference may be drawn, there must be evidence capable of showing fabrication apart from both the evidence contradicting the accused's testimony and the fact that the accused is found to have testified falsely at the trial.")<br>

par exemple. {{CanLIIRP|McGrath|gf57k|2014 NLCA 40 (CanLII)|356 Nfld & PEIR 252}}{{perNLCA|Rowe JA}} (3:0){{AtL|gf57k|19}} citing trial judge's reasons for disbelieving accused ( {{Tr}}« Her answers to other questions were often vague and evasive.  When confronted by evidence that was contrary to her testimony, the accused would immediately recant and change her testimony to conform.")<br>

{{CanLIIRP|MG|231tq|1994 CanLII 8733 (ON CA)|[1994] OJ No 2086}}{{perONCA|Galligan JA}} (2:1){{atL|231tq|27}}, appeal discontinued [1994] SCCA No 390{{at-|27}} ( {{Tr}}« Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness said on other occasions, whether on oath or not.")<br>

{{CanLIIRx|GH|j4b2k|2020 ONCA 1 (CanLII)}}{{AtL|j4b2k|32}} ( {{Tr}}« A prior inconsistent statement can be used to cross-examine a witness. It can only be used on the issue of credibility.")

{{CanLIIR-N|RWB| (1993), 24 BCAC 1, 40 WAC 1 (BCCA)}} at pp. 9-10 {{perONCA|Rowles JA}} (" While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. ")

{{ibid1|RWB}} ( {{Tr}}« There is no rule as to when, in the face of inconsistency, such doubt may arise, but at least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable.")

{{CanLIIRP|MG|231tq|1994 CanLII 8733 (ON CA)|[1994] OJ No 2086}}{{perONCA|Galligan JA}} (2:1){{atsL|231tq|23|}}{{atsL-np|231tq|27|}} (" But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.")<br>

{{CanLIIRP|Krack|gd3xl|1990 CanLII 10976 (ON CA)|56 CCC (3d) 555}}{{perONCA|Lacouriciere JA}} (3:0){{atps|561-562}} (CCC)< br>

{{ibid1|LL}}{{atL|23lbs|44}} ( {{Tr}}« When dealing with the issue of a complainant’s motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. As Rowles J.A. stated in R v B. (R.W.) [citation omitted] at para. 28: “it does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth.” Put another way, the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate")

{{CanLIIRP|TM|gfgd3|2014 ONCA 854 (CanLII)|318 CCC (3d) 153}}{{perONCA|Laskin JA}} (3:0){{atL|gfgd3|40}} (In a historical sex assault where credibility is at issue, "[t]he Crown was entitled to try to show the absence of a motive to fabricate, because it is a factor in the assessment of credibility.")

{{supra1|TM}} ("...questions that explored the nature of the relationship between the appellant and the complainants, or between the complainants themselves, were proper.")<br>

{{CanLIIRP|Ramos|jbtj6|2020 MBCA 111 (CanLII)|MJ No 266}}{{AtL|jbtj6|113}} ("...in assessing credibility, caution should be exercised in reliance on demeanour evidence; undue weight should not be placed on it.")<br>

{{supra1|WJM}}{{atL|hsmn5|45}} ( {{Tr}}« It is not infallible and should not be used as the sole determinant of credibility.")

{{CanLIIRP|Rhayel|gj55b|2015 ONCA 377 (CanLII)|324 CCC (3d) 362}}{{perONCA|Epstein JA}}{{atL|gj55b|85}} ( {{Tr}}« It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.")<br>

{{CanLIIRP|Bourgeois|gx66g|2017 ABCA 32 (CanLII)|345 CCC (3d) 439}}{{TheCourtABCA}} (2:1){{atL|gx66g|21}} (it is error of law "when a trial judge’s assessment of the witness’s demeanour becomes the sole or dominant basis for determining credibility, and where the trial judge appears to be unaware of the risks associated with over-reliance on demeanour") aff’d 2017 CSC 49  

{{CanLIIRPC|Faryna v Chorny|gc4lv|1951 CanLII 252 (BC CA)|[1952] 2 DLR 354 (BCCA)}}{{perBCCA|O'Halloran JA}}{{atp|357}} ( {{Tr}}« The real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those conditions")</ref>

{{supra1|JC}}{{atL|jdj61|58}} ( {{Tr}}« judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice")<br>  

{{supra1|JC}}{{atL|jdj61|63}} ( {{Tr}}« factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour ... it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility ... It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act") and para 65

{{CanLIIRPC|Novak Estate (Re)|20zsb|2008 NSSC 283 (CanLII)|860 APR 84}}{{AtL|20zsb|37}} ( {{Tr}}« There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety.  On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence")

{{CanLIIRx|M|h695c|2017 ONSC 5537 (CanLII)}}{{perONSC|Roger J}}{{atL|h695c|29}} ( {{Tr}}« The W.(D.) analysis applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case.")<br>

{{CanLIIRP|BD|2fbx2|2011 ONCA 51 (CanLII)|266 CCC (3d) 197}}{{perONCA|Blair JA}} (3:0){{atL|2fbx2|114}} ( {{Tr}}« What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses.  They have a broader sweep.  Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.") <br>

{{CanLIIRx|Castelein and Berthelette|hn8sb|2017 MBQB 173 (CanLII)}}{{perMBQB|Greenberg J}}{{atL|hn8sb|13}} ( {{Tr}}« In deciding whether the Crown has met its burden, I must consider Mr. Berthelette’s exculpatory statement in the same manner as I would had he testified")<br>

{{supra1|BD}}{{atL|2fbx2|114}} ( {{Tr}}« What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses.  They have a broader sweep.  Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. ")<br>

{{supra1|Tran}}{{atp|987}} ( {{Tr}}« the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness")<br>  

Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25 ( {{Tr}}« It is much more difficult to assess the credibility of evidence given through an interpreter")<br>