Human Rights: Evidence: Credibility & Reliability

Many cases involve conflicting recounts of the facts involving two competing parties, with no independent witnesses supporting either view. In this event, credibility becomes an extremely important issue.

In making credibility assessments, the decider often will rely upon the test as set out in Faryna v. Chorny. ¹ The passage below is frequently cited, no doubt to ensure that the reader and any appellate review body will be satisfied that the correct principles have been applied:

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 the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions…

This passage emphasizes the necessity for an objective assessment to be made as to whether or not the witness’ evidence “makes sense”. While this is certainly true, an important factor going into the assessment of credibility is the demeanour of the witnesses while giving evidence. In addition, the manner of speech of the witnesses is often telling in terms of their credibility.

In this case, I found that the applicant gave her evidence in a straightforward and direct manner, despite the fact that she was understandably quite nervous. She was able to describe with considerable certainty and precision the various incidents of harassment and discrimination that she alleged took place. Her evidence was not seriously disturbed on cross-examination. I do not believe that she exaggerated her evidence in any material way. Overall, I found her to be a credible witness.

This issue of credibility was also reviewed in a criminal context in a 2001 case in Ontario. ² The distinction between “honesty” or “credibilty” and “reliability” was then noted:

“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses.  It has two generally distinct aspects or dimensions:  honesty (sometimes, if confusingly, itself called “credibility”) and reliability.  The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box.  The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation.  The evidence of even an honest witness may still be of dubious reliability.

The Court in this instance stated that credibility relates to the sincerity of the witness, their willingness to speak the truth, as they see it.

The secondary issue is the reliability of the evidence offered. This decision looked to the Ontario Court of Appeal decision ³

 The latter concerns relate to the actual accuracy of the witness’s testimony.  The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue.  When one is concerned with a witness’s veracity, one speaks of the witness’s credibility.  When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony.  Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point.  The evidence of a credible, that is honest witness, may, however, still be unreliable.

The same authority also observed that, depending on the context and the evidence as the court has determined, such evidence may be fully accepted, some may be believed or none.

When credibility is an important factor, “bald conclusions as to the credibility of one witness as compared to another will not suffice”⁴

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1. B.C.C.A.; as also referenced in Harriott v National Money Mart and Wade (Whyte); Ratneiya v Daniel and Krumeh (Eyolfson)
2. Green, J. in R. v. Taylor
3. R. v Morrissey 
4. Law Society of Upper Canada v. Neinstein; Audmax v HRTO (Divisional Court)