Instructing the Jury on the Limits of Demeanor Evidence

It is very common in trials where the credibility of a complainant is at issue that the Crown’s submissions will, among other things, address the demeanour of a complainant: for instance, that the complainant’s testimony had the ring of truth; that the complainant testified in a manner that was simple and straightforward; that the complainant appeared to do his/her best to answer all of the questions.

The trier of fact (whether it be a judge or a jury), however, should be cognizant of the fallibility of evaluating credibility based on the demeanour of witnesses.

A trial judge should generally instruct the jury on the limits of demeanor evidence in assessing credibility. The Canadian Judicial Council’s Model Jury Instructions, Part I, Preliminary Instructions, 4.11 Assessing Testimony (online: https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/?langSwitch=en) includes the following instruction:

What was the witness’s manner when he or she testified? Do not jump to conclusions, however, based entirely on the witness’s manner. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different intellects, abilities, values, and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or the most important factor in your decision. [Emphasis added].

See also David Watt, Watt's Manual of Criminal Evidence, 2nd ed. (Toronto: Thomson Reuters, 2015), at p. 268.

This model instruction is well founded both in law and common sense. In R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85, Epstein J.A. cited the growing understanding of the “fallibility of evaluating credibility based on the demeanour of witnesses”:

It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

See also Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66, and R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505, at paras. 44-45.

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