Fact Finding
Overview
The proper administration of justice by civil and criminal courts requires that the trier of fact – whether a judge or jury – effectively assess the credibility and reliability of witness testimony and draw relevant inferences that flow logically and reasonably from circumstantial evidence.
Absolute truth is an elusive target. No judge or jury in any civil or criminal case is required to satisfy that standard when delivering a verdict.
In civil proceedings, the facts are determined on a balance of probabilities. In a criminal matter, where the liberty of an individual is often at stake, the prosecution must prove its case against the accused beyond a reasonable doubt.
In our system of justice, Courts have historically emphasized the distinction between questions of fact and questions of law. Appellate courts typically defer to the factual findings of a jury or trial judge unless the appellant can demonstrate a palpable and over-riding error of fact.
It is important, in every case, that the trier of fact take into account the subtle relationship between their assessments of credibility, reliability and circumstantial evidence.
The assessment of credibility focuses on the sincerity and honesty of a witness. A person who makes a statement believing it to be false, or with reckless indifference to its truth or falsity, speaks dishonestly. The trier of fact may describe a witness who lacks credibility as untruthful, deceitful, devious, duplicitous, mendacious, unscrupulous, disreputable or unethical. A good thesaurus will list many other synonyms.
Reliability concerns the ability of the witness to observe, recall and communicate with accuracy. A witness may be sincere and honest but wrong or mistaken about events in issue. For example, because memory is fallible, an honest witness may testify credibly about their recollection of events, but be mistaken when describing their sequence or timing. Difficulties often arise with eyewitness testimony which is prone to distortion and to unconscious contamination by post-event information including media publicity.
Circumstantial evidence may allow the trier of fact, relying on logic, common sense and experience, to draw reasonable inferences which support, refute or fill in gaps in witness testimony. Any inference that does not flow logically and reasonably from established facts is mere conjecture or speculation which cannot be given any evidentiary weight. Reasonable inferences from circumstantial evidence play an important role in assessing the credibility or reliability of witness testimony, or in proving a material fact which is not established by the testimony of any witness.
In our system of justice, the whole of the evidence (testimonial or circumstantial) must be considered and weighed. “There are no facts until certain evidence is accepted as believable, as credible, as truthful.” Ontario v Bharath, 2016 ONCJ 382, per Quon J.P. at para. 424 citing R. v Comer, 2006 N.S.J. No. 291, at paras. 96-98.
Credibility
Credibility is an issue of fact and cannot be determined by following a set of rules which have the force of law.
Judges have referred to various factors that may be taken into account when assessing credibility but no court has laid down an exhaustive list. “It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration.” R v. White, 1947 CanLII 1 (SCC), [1947] SCR 268 per Estey J. at page 272.
In R v D.D.S., 2006 NSCA 34, Saunders J.A. stated:
[77]…Centuries of case law remind us that there is no formula with which to uncover deceit or rank credibility. There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together by seasoned judicial stirring will yield proof of veracity.
Credibility assessment is not a science. 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:” R. v. Gagnon, 2006 SCC 17 at para. 20.
Assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization: R. v. M. (R.E.), 2008 SCC 51 at para. 49.
A dishonest witness may be identified by any of the following red flags:
- A reputation for dishonesty
- A motive to fabricate
- Vague testimony lacking material detail
- Prior inconsistent statements
- Internal inconsistencies
- External inconsistencies
- Evasive responses
- Delayed responses
- Exaggeration
- Distortion
- Omissions
- Overt hostility
- Absurd statements
- Misuse or abuse of language
- Senseless denials
- Random guessing
- Anomalies
- Incongruities
- Incoherent narratives
The same red flags may be relevant to an assessment of reliability.
An assessment of credibility or reliability demands a critical examination of all of the evidence.
A BRITISH COLUMBIA LIBEL JUDGMENT ARTICULATES KEY FACT-FINDING PRINCIPLES
In the common law provinces of Canada, the decision of the British Columbia Court of Appeal in a libel case — Faryna v Chorny, [1952] 2 DLR 354 –is frequently referred to by trial and appellate courts for its discussion of credibility, reliability and circumstantial proof. In that case, O’Halloran J.A., in reasons delivered orally, dismissed an appeal brought by the defendant defamer, stating:
… But the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted, or the circumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time; and c.f. Brethour v Law Society of B.C., [1951] 2 D.L.R. 138 at pp. 141-2.
If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with the purely arbitrary finding and justice would then depend on the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility…A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
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 the 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 a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. …
[BOLDING ABOVE FOR EMPHASIS BY MCCONCHIE LAW CORPORATION]
According to CANLII, Faryna v Chorny has been cited by more than 9,000 documents as of February, 2025.