Reliability as a Factor of Credibility

• Author: Justice Cameron Gunn/Mona Duckett/Patrick McGuinty
• Pages: 241-257

241

Reliability as

a Factor of

Credibility

15

I. The Opportunity to Observe or Perceive ....................... 

II. The Capacity to Observe or Perceive .......................... 

III. The Capacity to Communicate Observations and Perceptions ..... 

IV. Areas of Specic Concern .................................. 

A. Eyewitness and Voice Identication ..................... 

B.

Age-Related or Capacity-Related Concerns with Reliability

.... 

C. Common Sense Versus Judicial Notice .................. 

Copyright © 2023 Emond Montgomery Publications. All Rights Reserved.

242Part III Assessing the Credibility of Witnesses

The reliability of a witness’s evidence has nothing to do with whether the witness

is being truthful. Rather, reliability is concerned with the ability of a witness to have

made and to relate observations or experiences. This has been said to relate to “the

testimonial factors of perception, memory, and communication.”1 The Nova Scotia

Court of Appeal described it this way:

The factors of memory, perception and use of language are concerned with the accu-

racy of the declarant’s perception and recounting of the events in question. The con-

cern is whether the declarant, although honest, was either mistaken or inappropriately

expressed what was perceived.2

Some authors and courts express these as testimonial factors, though that term

may be misleading as it often incorporates considerations of veracity. Reliability, in

the sense of it being disconnected from the question of truthfulness, can be broken

down into three distinct concerns:

1. The opportunity to observe or perceive.

2. The capacity to observe or perceive.

3. The capacity to communicate observations or perceptions.

These categories may overlap, and a concern that impacts one of these catego-

riesmight equally, or to a lesser degree, impact another. Some general observations

have been made about the concepts relevant to reliability, and these are addressed

below. It is important to remember, however, that each case must be considered on

its own facts.3

Before turning to general considerations as they relate to the concerns listed above,

it bears special mention that there has been specific attention and criticism with

respect to the reliability of eyewitness identification, and the evidence of children and

people with intellectual impairments, among others. After a review of the general fac-

tors (which would apply to all assessments of witness reliability), these special areas

of concern will be discussed.

The assessment of the witness is focused on the factors that are actually present.

In reversing a decision of the Ontario Court of Appeal in a case where the majority

had granted an appeal on the basis that the trial judge had not specifically addressed

“suggestibility,” the Court adopted the reasons of the dissent. The Court held that

assessments of reliability and credibility should be based on actual characteristics and

not on generalities that can perpetuate stereotypes.4 A witness’s evidence should also

1 R v Thomas, 2012 ONSC 6653 at para 13.

2 R v Smith; R v James, 2007 NSCA 19 at para 172.

3 Pepall JA (dissenting) in R v Slatter, 2019 ONCA 807 at para 119. The Supreme Court of

Canada adopted the reasons of PepallJ in overturning the majority decision.

4 R v Slatter, 2020 SCC 36 at para 2.

Copyright © 2023 Emond Montgomery Publications. All Rights Reserved.