The Failure of the Trial Judge to Resolve Inconsistencies in the Evidence on Significant Issues
While a trial judge is not required to resolve every
inconsistency in the evidence, the trial judge should address and explain how
she or he has resolved major inconsistencies in the evidence of material
witnesses:
G. (M.) (1994), 1994 CanLII
8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356; R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 31
The failure to articulate how credibility concerns are
resolved, particularly in the face of significant inconsistencies in a
complainant’s testimony, may constitute reversible error, as an accused is
entitled to know why the trial judge is left with no reasonable doubt.
R. v. D.H., 2016 ONCA 569
(CanLII).
A trial judge’s assessments of credibility are accorded very
considerable deference on appeal, but that deference is premised, in part, on
the trial judge sufficiently explaining how significant discrepancies that
could undermine credibility and reliability have been resolved.
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