Trial judges are often deferred to on various rulings and findings including credibility findings. This trite statement of the law is logical and easy to accept. Trial judges watch witnesses testify, they see their demeanour, observe their body language and observe them reacting and answering questions under the friendly atmosphere of examination in chief and under the less friendly atmosphere of cross-examination.

In the recent decision of R v BA, 2011 ONCA 603, that deference does not appear to have been offered.

The appellant was convicted after trial having taken the stand in his own defence. In convicting the appellant the trial judge, De Filippis J, listed four reasons why he rejected the accused’s evidence. One of those reasons was the fact that the appellant was not “totally forthright about the extent of his criminal record” [para 1]. In fact the trial judge found that “the appellant deliberately failed to disclose his complete record” [para 1].

Defence counsel put the appellant's record to him in chief. The record presented, however, did not include the appellant's three most recent convictions. Defence counsel asked the appellant whether the record “accurately reflects your criminal record” to which the appellant replied “yes it does” [para 2].

During cross-examination the appellant volunteered that he was waiting for his license suspension to end; this prompted the Crown to ask whether the suspension was as a result of a criminal conviction and the appellant replied that he had recently been convicted of impaired driving. The appellant later testified under cross-examination that he had also been found guilty of two breaches of recognizance.

On appeal the appellant argued that the trial judge erred in relying on this part of his evidence as a basis to reject his evidence. The Court Appeal found that in “neither of these instances was the appellant being evasive or deliberately trying to hide his record” [para 3] and that "the trial judge was not justified in using it to make an adverse credibility finding” [para 4].

In allowing the appeal on that ground alone the Court of Appeal held that the "error in finding that the appellant’s initial mistake and acknowledgement of his record was not 'innocent' irretrievably tainted his credibility finding" [para 4].

With respect, this conclusion appears to have failed to pay appropriate deference to De Filippis J in the circumstances.

First, even if the appellant "offered" the additions to his criminal record during cross-examination it could be open to the trial judge, based on the way in which he offered them and the manner in which it unfolded to find that it was not as forthcoming as it appeared on the transcripts.

Second, the accused having looked at the record produced answered that it the document “accurately reflects [his] criminal record.” Nothing in the evidence reveals that the accused did not understand the question. Thus, having observed the accused testify, the trial judge’s finding that the accused was not forthcoming and in fact was being deceitful should be owed far greater deference. This is especially so where this was but one of four reasons that the trial judge rejected the accused’s evidence.

Third, as held by Charron J in R v Dinardo, 2008 SCC 24 at para 26 it will be rare for an appeal court to intervene in these circumstances:

Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal [emphasis added].

While the Court of Appeal may have fairly disagreed about the impact of this aspect of the appellant's evidence, with respect, the deference owed to the trial judge was not properly considered.

DG Mack