CREDIBILITY AND DEMEANOUR: AN EXAMINATION
BASED ON THE WORLD OF LITERATURE
Ontario Court of Justice
May 3, 2001
In any discussion on the subject of credibility, the issue of the relative merits of demeanour evidence is bound to dominate. In deciding whether to accept or to reject testimony, how much importance should we assign to such subjective factors as the tone of voice1, the presence of an ironic smile2, the fact of swallowing prior to responding3, or a nervous twitch of the eyebrows4, to name but a few examples? Is not the acceptance or rejection of testimony on such grounds fraught with danger? Should not the search for the truth be confined to objective criteria including such matters as prior inconsistent statements, contradictory assertions in examination-in-chief and during cross-examination, illogical propositions, etc.
After all, a witness may be able to look at counsel straight in the eye, be calm, cool and confident, and yet advance a fact that is quite simply impossible to accept. The best known example is that of a major-league ballplayer who was once hauled from a burning bed by an irate hotel manager who accused him of starting the fire by smoking. The player's answer: "That bed was on fire when I got into it".5 In my view, no matter how sincere the player may have appeared, the improbability of such an account doomed him to be disbelieved.
Leaving aside this exceptional case, what are the telltale signs that reveal dishonesty? To the contrary, what are the badges of sincerity? In attempting to answer these questions, reference may be had to numerous cases and academic commentary. Would it not be more interesting, however, to leave aside for the most part the law texts and to consider what the celebrated Belgian writer Georges Simenon has to say, albeit indirectly, on the subject?
Although the work of the fiction writer may not readily come to mind as a signpost for the assessment of demeanour, if one pauses to consider the variety and novelty of many of the "stories" one hears in a court room, it may be that we are missing out on much valuable guidance. More to the point, the art of the fiction writer leads them to describe the demeanour of individuals in stressful situations and even a brief study of such writing may well be of assistance in separating the honest from the less than frank witness and in delineating nervous but candid reactions from guilt-betraying ones. To track the language of no less an authority than Dean Wigmore, "The lawyer [and the judge] must know human nature. He [or she] must deal understandingly with its types and motives. These he cannot all find close around... For this learning he [or she] must go to fiction which is the gallery of life's portraits."6
The plan of this brief article is straightforward. I begin with an overview of the leading pronouncements on the potential shortcomings of the evaluation of demeanour evidence. To better understand the significance of this case law, a review of a number of basic themes of demeanour evidence will follow. A fuller understanding of each theme may be gained by the technique of referring next to a number of quotes from the early novels of Georges Simenon, in which the famous Commissaire Maigret appears frequently. These quotes will serve to illustrate the particular demeanour concern that falls to be evaluated. In each case, I have taken the liberty of translating the text with a view to making plain the reference to the behaviour of the individual when questioned in a stressful situation; I am ill qualified to convey his wonderfully deft prose. All references are to volumes 16 or 17 of the 27 volume collection "Tout Simenon", ©Libre Expression, 1991, Presses de la Cité, Paris.
1) The subjective appreciation of credibility:
At the outset, it must be noted that the Supreme Court of Canada has acknowledged that subjective factors may play a decisive role in the evaluation of credibility, and that the demeanour of a witness may lead to the rejection of that person's evidence. For example, in R. v. Lifchus (1997), 9 C.R. (5th) 1, 118 C.C.C. (3d) 1, 150 D.L.R. (4th) 733, 216 N.R. 215, 118 Man. R. (2d) 218, at page 11, para. 29 [C.R.], Cory J. held that:
... there may be something about a person's demeanour in the witness box which will lead a juror to conclude that the witness is not credible. It may be that the juror is unable to point to the precise aspect of the witness's demeanour which was found to be suspicious, and as a result cannot articulate either to himself or others exactly why the witness should not be believed. A juror should not be made to feel that the overall, perhaps intangible, effect of a witness's demeanour cannot be taken into consideration in the assessment of credibility.
With respect, the difficulty is that a witness may be disbelieved, simply because she made a poor impression due to her clothes, her mannerisms, or her attitude, and yet the testimony was logical, coherent and consistent. Ought we not to insist that there must be something that we can point to that permits us to say, with confidence, "that person lied!"
In this respect, note the instruction of the Supreme Court of Canada in Laurentide Motels v. Beauport (City),  1 S.C.R. 705,  S.C.J. No. 30 (Q.L.), 94 N.R. 1, 23 Q.A.C. 1, 45 M.P.L.R. 1 at p. 799 S.C.R., para. 245. L'Heureux-Dubé remarks that triers of fact are at liberty to consider "the movements, glances7, hesitations, trembling, blushing, surprise or bravado" of witnesses. The advantage in attempting to base decisions on some of these factors is that they provide an objective measure of evaluating information. For example, a witness who takes an undue period of time to answer the simplest questions may be judged to be merely attempting to recall a story that has been fabricated. The witness who demonstrates bravado in answering difficult questions may rightly be discounted on the grounds that one cannot be confident that the witness would admit to any failings. Lastly, note that a witness appeared to have looked over to another person prior to answering. This type of 'glance' for help is capable of objective evaluation. Refer to para. 244. The other factors, however, are quite subjective and difficult to evaluate.
One questions whether trial judges are at liberty to merely reject testimony based on a "feeling" or impression grounded merely on demeanour. In this respect, note the recent comments of the Court of Appeal for Ontario in R. v. Strong, April 12, 2001, file C31423. As recorded at para. 9, "Second, the trial judge offered no reason for his rejection of the appellant's evidence. He simply said 'I do not believe him'. In a case like this, some explanation for that conclusory statement was required." The Court went on to note that his evidence was not inherently incredible and it was entirely consistent with what one would expect from a person trying to recall what to him would have been routine events 30 years ago. And, more to the point, "None of the usual indicia of unreliability were referred to by the trial judge (eg. prior inconsistent statements, evasiveness,8 lies)."
I pause to note that the trier of fact may not be impressed with glaring contradictions and inconsistencies, and may decide issues on the basis of a favourable demeanour, another matter for concern. The most notable example is found in R. v. Francois (1993), 64 O.A.C. 140 (CA). As recorded at para. 4, "In a very impressive cross-examination counsel for the accused made a number of points serving to paint the complainant's evidence as implausible. The two most prominent issues concerned the number of times she had been raped and prior sworn statements which would refute that she had ever been raped." At paragraph 6, we read, "In cross-examination she was confronted with an affidavit she had sworn in 1986, saying that she had never been sexually abused. The affidavit had been filed in wardship proceedings concerning her. A second affidavit was put to her which she had sworn in 1989, in proceedings claiming support from a putative father of her son, stating that she was a virgin prior to 1985. She freely admitted that these were important statements in the proceedings in which they were filed and that they were untrue."
Further, as noted at para. 6, "... she said that she believed them to be true because she had blocked the incidents involving the appellant out of her memory. This memory returned to her in a flashback in 1990 at a time when she was being interviewed by the police in connection with further wardship proceedings. This evidence in cross-examination was a clear contradiction of her testimony in chief that she did not complain until 1990 because of her fear of the appellant." Para. 7 recorded these comments, "There were additional less significant inconsistencies in her evidence and, overall, it would not have been surprising if the jury were left with a reasonable doubt concerning the guilt of the accused."
Nevertheless, the jury found the accused guilty.
Carthy J.A. remarked at para. 13:
I struggle as well with the testimony of a mental block and flashback, raised for the first time in response to the presentation of previously sworn irreconcilable statements. This change of testimony is as much as a cross-examiner can hope for and, if this were a trial by transcript, would raise a reasonable doubt in most readers' minds. On the other hand, the complainant stood before the jury and, presumably, gave her explanation in a straightforward and credible manner. The members of the jury were in a position to arrive at an intuitive judgment that her final evidence of mental block and flashback was the truth. I cannot see the complainant, hear the voice as it offers explanations, or observe the body language that we all use to separate truth from fiction in face-to-face encounters. [Emphasis supplied]
By way of contrast, consider the comments of Sopinka J. in R. v. Burke,  S.C.J. No. 27 (Q.L.),  1 S.C.R. 474, 194 N.R. 247, 139 Nfld. & P.E.I.R. 147, 105 C.C.C. (3d) 205, 46 C.R. (4th) 195. At para. 11-13, we read:
In 1989, fourteen years after the first investigation had closed, E. came forward with startling new revelations concerning the apparently brutal treatment he had received at the hands of the Christian Brothers. As a result of E.'s claims, the investigation was eventually re-opened and E. was called to testify before a commission of inquiry (the Hughes Commission). During the course of this inquiry, it became apparent that at least some of E.'s claims regarding the Christian Brothers, particularly those concerning Mr. Burke, were gross exaggerations to say the least. Indeed, at least some of the allegations made by E. were eventually proved to have been completely false.
Prior to his appearance before the Commission of Inquiry, E. appeared on the widely viewed "Oprah Winfrey" television program. While being interviewed on that program, E. gave detailed descriptions of the forms of abuse that he had suffered at the hands of the Christian Brothers. Perhaps the most shocking of these allegations was E.'s claim that the Christian Brothers had repeatedly engaged in sexual intercourse with the ren who were entrusted in their care. Needless to say, the public outrage resulting from E.'s claim was overwhelming.
When E. finally appeared before the Commission of Inquiry, it became clear that his claims of sexual intercourse between the orphans and Christian Brothers were untrue. E. eventually admitted that the events he had described on "Oprah Winfrey" had simply never occurred. In explaining why he had invented the allegations in question, E. claimed to have been "tired" at the time the interview was conducted. The trial judge wisely refused to accept this feeble explanation. [Emphasis supplied]
Prior to concluding this first section, I wish to refer to certain other authorities. Firstly, to the classic instruction on the subject of the evaluation of credibility, as articulated by O'Halloran, J.A., speaking on behalf of the British Columbia Court of Appeal, in Faryna v. Chorny,  4 W.W.R. 171,  2 D.L.R. 354, at page 356 [D.L.R.]. The Court cautions against the too ready resort to demeanour as the foundation for factual conclusions.
But the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted, or the circumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time...
If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility... A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
In addition, note the following observations recorded at page 357 of Faryna v. Chorny:
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 a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth.
It will be of assistance to remark that in the above noted Brethour case, O'Halloran J.A. said at page 141:
The credibility of interested witnesses, particularly in cases of conflict of evidence, must reasonably be subjected to an examination of the consistency of their stories with the probabilities that surround the currently existing conditions. In short, the real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and under those conditions. A Court of Appeal must be satisfied that the finding of credibility in the tribunal of first instance is based, not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.
Note as well the pains taken by Hill, J. in R. v. N.K.D.,  O.J. No. 3877 (Q.L.) (Gen. Div.). His Honour made plain, at para. 27, that "As the trier-of-fact, I endeavoured to pay close attention to the principal witnesses during their testimony. In the end result, however, my observation of the demeanour of the witnesses was unhelpful in determining the issue of guilt or innocence."
Having considered the shortcomings of the demeanour evidence, the Court opined that "In evaluating the testimony of a complainant, a number of factors are worthy of consideration including the internal consistency of her evidence, the logic and common sense of the testimony in terms of the circumstances described, the consistency of the complainant's evidence against the standard of prior statements made by her and against the defence evidence and the exhibits filed." Refer to para. 30. I hasten to add these helpful observations, found at para. 33: "It is generally recognized that some differences or discrepancies in a witness' testimony, in particular when compared to prior statements of that witness out of court, may well be indicative of a truthful witness -- one who has not provided a scripted and rehearsed account, but rather one which suffers only from certain human frailties, for example, the product of a dulled memory, confusion from the stress of being a witness or other cause too insufficient to significantly affect the witness' credibility and reliability."
By way of summary, I make four observations:
- the demeanour of a witness is an available feature in the appreciation of credibility, based on the two judgments of the Supreme Court of Canada in R. v. Lifchus and Laurentide Motels v. Beauport (City);
- a witness may present a 'positive' demeanour, including a good tone of voice and appropriate body language, that succeeds in overcoming any concerns the trier of fact may have with respect to the content of the testimony, as made plain in R. v. Francois;
- a witness may be disbelieved based on the content of the testimony, as contrasted with earlier statements, notwithstanding any favourable impression while testifying, as may be gleaned from R. v. Burke;
- the evaluation of demeanour may be far less reliable a gauge for the veracity of testimony than is the examination of the logic and coherence of an account, chiefly on the basis of Faryna v. Chorny.
2) An examination of demeanour:
By way of introductory comment, recall the words of Justice Carthy respecting body language and the tone of voice. In this vein, would you agree with the following comment: "His tone of voice was less firm, proof that James was lying deliberately."9 Are we to follow Simenon's lead in this respect? Are we to attach credence to this apparent badge of dishonesty, the unsure or hesitant tone of voice? It appears that Commissaire Maigret did. But what of the real world, the world of trials, of courtrooms, and of the almost infinite varieties and conditions of witnesses?
Let us now examine what Simenon teaches on the issue of demeanour and credibility.
a) Laughter and demeanour?
"Did you not think to speak to the authorities of Mr. Clément's visit"? "My goodness..."
To hide his concern, he tried to laugh.Monsieur Gallet, décédé (The Death of Monsieur Gallet),
Tout Simenon 16, page 40.
Blood's oath... You are saying that I would have... Ha ha! If that doesn't beat all... This is better than what you see at the cinema...Au Rendez-Vous des Terre-Neuvas (The Sailors' Rendez-vous)
Tout Simenon 16, page 681.
It is not uncommon for triers of fact to be confronted with witnesses who react to stressful questions by laughing. Is this a hint that they are insincere or, to the contrary, is it the badge of the honest witness whose demeanour is upset by the stress of the situation? In our experience, honest individuals may react to difficult questions by smiling and, at times, by laughing. Thus, although laughter may well be a sign of lack of respect for the court and it may betray a lack of concern for the solemnity of the occasion, it is not always a signpost for lack of candour. As noted by Trainor, J., "Bear in mind that a courtroom is a strange place for most people..." Refer to Vanderbyl v. I.C.B.C.,  6 W.W.R. 725, 79 B.C.L.R. (2d) 156,  B.C.J. No. 1007 (Q.L.) (S.C.), at para. 20:
In both civil and criminal proceedings when sitting with a jury it is the responsibility of the trial judge to instruct them on the course they should follow when dealing with the testimony of witnesses. Those instructions apply, as well, to the task facing a judge sitting without a jury. I usually say something to a jury along the following lines,
When you think about the evidence of a witness concern yourself about their opportunity to observe. What chance did they have to observe whatever it was about which they are testifying? What are their powers of observation? Generally what kind of an individual are they? Are they the kind of person that you can rely on to give you an accurate account? You have to make that decision on the basis of their general evidence and your impression of the individual as they gave you their evidence.
In carrying out your task you should reflect upon the demeanour or appearance in the witness box of each of the witnesses. With each witness you will look at his interest or disinterest, integrity, knowledge of facts. Is he reliable? Is he careful? Gauge as well as you can the honesty and capacity of a witness. Bear in mind that a courtroom is a strange place for most people, and remember that the testimony of each of the witnesses must be regarded in the light of all of the circumstances, including what other persons have said.
b) Looking at counsel "straight in the eye":
"Are you acquainted with Mr. Jacob"?
She offered him her gaze, as if to invite him to see in it a badge of sincerity.Monsieur Gallet, décédé (The Death of Monsieur Gallet),
Tout Simenon 16, page 51.
Maigret looked at him in the eyes. The man appeared to be sincere, not bright enough, in any event, to lie with any ability.Monsieur Gallet, décédé (The Death of Monsieur Gallet),
Tout Simenon 16, page 62.
Maigret's look was focused directly into the eyes of the American, who was not troubled in the least.La tête d'un homme (A Battle of Nerves),
Tout Simenon 16, page 772.
"You did not kill Feinstein?"
Ardently, Basso looked at Maigret, directly at his eyes.La guinguette à deux sous, (The Guinguette by the Seine),
Tout Simenon 17, page 170.
The question of demeanour and the ability of a witness to look at counsel (or the judge, the jury or the accused), "straight in the eye" has no doubt resulted in a number of incorrect judgments respecting credibility and reliability. Indeed, it is difficult in this day and age to understand how the ability to withstand the withering look of another may be seen as anything but a particular personality trait; how does it convey the message that one is telling the truth as opposed to demonstrating that one is in the habit of staring directly at a speaker? Notwithstanding the lack of any scientific basis for such a belief, it endures, as illustrated by the above noted quotes and by tracking the language from L'affaire Saint-Fiacre, (The Saint-Fiacre Affair), Tout Simenon 17, at page 296: It was frustrating, this inability to meet and hold the look of the steward while questioning him. Consider as well the importance of failing to hold the look of the questioner10, as in Le port des brumes (Death of a Harbour Master), Tout Simenon 17, page 561: "Captain Delcourt turned his head away, unable to deny."
I pause to digress in order to make plain the variety of emotions and insights into the thoughts of a person that Simenon believes may be gained by a study of the eyes. In Chez les Flamands (The Flemish Shop), Tout Simenon 17, at page 412, he speaks of a "joyous spark in the eyes". In Le port des brumes (Death of a Harbour Master), Tout Simenon 17, at page 581, he writes of an individual who presented a "rancorous look". Of course, the best known, most vivid and least understood expression must surely be: "le mauvais il" [the evil eye] found in Le passager du Polarlys [The Mystery of the 'Polarlys'], Tout Simenon 17, page 649.
Possibly the best known concern in this respect surrounds First Nations witnesses whose testimony may have been discounted by resort to this "apparent" badge of sincerity to conclude that it is, at best, a doubtful measure of demeanour.11 For example, in Multicultural Law Enforcement (Strategies for Peacekeeping in a Diverse Society), [Prentice Hall, Englewood Cliffs, N.J., 1995], Robert M. Shusta and his co-authors observe that "An Indian who adheres to the unspoken rules about eye contact [being impolite] may appear to be shifty and evasive." Refer to page 251. See also the wonderfully insightful pages penned by Rupert Ross in Dancing with a Ghost: Exploring Indian Reality [1992, Octopus Publishing Group, Markham], in particular at 6-10.
I do not wish to be taken to suggest that all members of our First Nations react or not in such a fashion: merely that some do, as do many members of other groups, for various reasons.12
What is fundamental to any evaluation of an account of events is that the judgment made of the person relating the account be based on a fair understanding of his or her personality. Hence, an individual who is shy is to be assessed as such. See Le chien jaune (A Face for a Clue), Tout Simenon 16, at page 288, in which a young woman was on the verge of tears in answering questions due to her natural modesty.13
c) Blank expression:14
"The poor are in the habit of curbing the expression of their lack of hope...".Le pendu de Saint-Pholien (Maigret and the Hundred Gibbets),
Tout Simenon 16, page 123.
She had the look of someone who is troubled but who wishes to present a natural appearance...La tête d'un homme (A Battle of Nerves),
Tout Simenon 16, page 782.
Quite an odd individual, half one thing and half another, neither young nor old, not handsome, not plain, perhaps devoid of any thoughts, perhaps chock full of secrets.La guinguette à deux sous, (The Guinguette by the Seine),
Tout Simenon 17, page 118.
What if these individuals are in the habit of curbing their sorrow, their dejection? Will this fact rebound to their disadvantage in a case in which they have been victimized? In a courtroom setting, the trier of fact "meets" the witness from the box and must judge that person based on the demeanour of the witness and the answers provided to the questions being put. Will a true portrait emerge, not just of the "warts and all" but of the life experience of the person, and of the subtle influences that have left an indelible imprint on that person's personality and manner of expression. In this respect, consider R. v. Shokohi-Manesh (1991), 8 B.C.A.C. 263, 17 W.A.C. 263 (C.A.), wherein the Court of Appeal notes the opinion of a probation officer that the accused's ongoing pattern of criminal activity may have been consistent with the "second year syndrome" which many newcomers to Canada experience. It is characterized by loneliness, depression, confusion...". Refer to page 264, para. 6. If an individual who testifies is labouring under this difficulty, will the trier of fact know of it?
On the other hand, the confident witness may be seen as too sure of him(her)self, as in Le Relais d'Alsace (The Man from Everywhere), Tout Simenon 16, at page 856: "He was young. His eyes expressed the thought: Whack! Try to top that answer!"15
d) The nervous individual:
Maigret displayed a quite neutral expression, a look bereft of any thoughts.
"Is it not strange, that we all met again after so many years! ... added Van Damme, who did not appear to be able to suffer a period of silence.Le pendu de Saint-Pholien (Maigret and the Hundred Gibbets),
Tout Simenon 16, page 136.
By means of a number of seemingly insignificant details, such as the manner of being, of taking a seat, of looking out, Maigret recognized him as one of those unusual individuals who, though guilty of no wrongful act, cannot help but betray anxiety when confronted by the police.Le pendu de Saint-Pholien (Maigret and the Hundred Gibbets),
Tout Simenon 16, pages 143-144.
And Maigret examined the hands of the civil servant, who blanched to the point that the Commissioner thought for a moment that he would faint. His lips were trembling. He was unable to speak.L'Ombre chinoise, (The Shadow in the Courtyard),
Tout Simenon 17, page 205.
Not unlike the example Simenon provides in the text above, what of the nervous, often garrulous, witness who fills any period of silence with additional comments or observations? Are they to be disbelieved because they do not follow the usual admonition to only answer the questions that are posed by counsel? Will this result in unfairness to the garrulous witness who appears to be less than stolid due to the very fact of being in a court-room? In considering the answers to these questions, note simply the assistance found in the title of Mr. Alan D. Gold's comment, "The Average, Nervous, Inadequate, Inarticulate, In Short, Typical Accused's Defence", in 22 C.R. (4th) 253. Many witnesses, not just the accused, may be described in that fashion.
What is important in such cases is to determine whether the witness is attempting to "pad the story", so to speak, by means of additional unsolicited comments or, instead, if the person is simply nervous and speaking, "afin de meubler le silence". A further example is found at page 243 of Le charretier de la Providence, (The Crime at Lock 14), Tout Simenon 16. Simenon notes that the individual being questioned by Commissaire Maigret was, at the same time, incapable of containing herself and incapable of lying as well. Otherwise, it is added, she would have advanced a far more complex account of events.
For a further example, note that in Pietr le Letton (The Case of Peter the Lett), Tout Simenon 16, page 429, we find an interesting description: "The Lett was trembling. It was patent. And, he was unusually nervous. His face, his entire body was agitated by multiple nervous tics". Consider also the inherent shortcomings of drawing conclusions respecting demeanour from factors such as the "... actions of his white hands betrayed his nervousness...". See La Nuit du Carrefour (The Crossroad Murders), Tout Simenon 16, page 476.
On the other hand, one must consider whether the individual who testifies in a relaxed, self-assured, fashion is not, in the words of Simenon, at page 157 of Maigret and the Hundred Gibbets, merely bluffing. Consider the comments in Les 13 coupables, Tout Simenon 17, at page 849, in which Simenon writes: "They are shown to be lying and they remain untroubled. They will go on to relate another story, with the same unawareness."
In this respect, note the comments of the Court of Appeal in R. v. Ahluwalia,  O.J. No. 4544 (Q.L.), 149 C.C.C. (3d) 193 (C.A.), at para. 35:
I find it hard to give any credence to a submission that the appellant established entrapment on the balance of probabilities based on a version of events which is directly contrary to his own evidence and places the entrapment some weeks before the appellant says there was any mention of drugs. The appellant's argument comes down to this: O'Connell J. erred in failing to find that the appellant had established entrapment on the balance of probabilities based on events which the appellant insisted never happened! The futility of the submission is self-evident. [emphasis supplied]
e) The inarticulate individual:
"You three were in agreement to propose to me..."
It was not necessary to complete the sentence. All could be understand with half-words. Even silence could be understood; one could almost hear the other's thoughts."Le pendu de Saint-Pholien (Maigret and the Hundred Gibbets),
Tout Simenon 16, page 170.
His countenance, however, spoke volumes respecting his thoughts...La danseuse du Gai-Moulin (At the Gai-Moulin),
Tout Simenon 17, page 50.
As Mr. Gold points out in his above-noted article, a good number of accused persons, and witnesses for that matter, will not be articulate. In fact, many witnesses appear to be in the habit of communicating in half sentences, for fear of saying too much or, more simply, out of fear of resorting to the wrong word or expression. Not infrequently, people are in the habit of communicating in an elliptical fashion with their spouses, by way of limited example, and they may present themselves in a poor light in the witness stand as a result. t times, this is the case of individuals who commonly resort to profanity to pepper their words and who cannot express themselves clearly, out of habit, if they cannot curse at the same time.
Again, care should be taken to assess the demeanour in a responsible fashion, being guided, to track the language of Hill J., as noted above, by considerations including the internal consistency of the evidence, the logic and common sense of the testimony in terms of the circumstances described, the consistency of the evidence against the standard of prior statements and against the [contrary] evidence and the exhibits filed."
Touching briefly on the second example noted, is there not a fundamental flaw in attempting to ascertain the thoughts of individuals based on their countenance? It is no doubt appropriate in many cases to evaluate a person's thoughts based on actions that appear instinctive or spontaneous, such as the recognition of a person when this is unexpected. For example, in La danseuse du Gai-Moulin (At the Gai-Moulin), Tout Simenon 17, at page 63, Simenon writes "Suddenly he turned around, saw Maigret, pointed him out while turning crimson." But the courtroom is rarely a place for spontaneous physical reactions given the time to reflect upon the questions to be put.
f) The hesitant witness:
"Gauthier has found sufficient sums?"
A moment of hesitation, quite brief.
"No, Commissioner... Let me explain it to you...".L'affaire Saint-Fiacre, (The Saint-Fiacre Affair),
Tout Simenon 17, at page 319.
She did her best to maintain an unaffected air, looked at her interlocutor in the eyes. But, in such cases, one may easily be misled by how natural this attitude is; the innocent who believes herself under suspicion is at times more troubled than the guilty party.Le passager du Polarlys [The Mystery of the 'Polarlys'],
Tout Simenon 17, page 676.
On the assumption that there is a distinction between the nervous witness and the apparently calm witness who hesitates in answering, what is the basis for the evaluation of credibility? How long is too long to answer? In this regard, it must be noted that counsel may be well advised in appropriate (and rare) cases) to time the responses of witnesses, either by producing a watch or by returning to the tape, in order to buttress a subsequent submission that the testimony lacked spontaneity and was not credible.
One example of a hesitant witness who thereby betrays his lack of candour is found in Chez les Flamands (The Flemish Shop), Tout Simenon 17, page 411: "Tell me straightaway why did you make up this story of a woman you had seen on the docks". "Me?" He was trying to gain time to think, was feigning to be eating with gusto. It will be of assistance to note that Simenon expressed the view that "When someone answers 'me?' in this fashion, nine times out of ten he is attempting to buy some time." See Le fou de Bergerac (The Madman of Bergerac), Tout Simenon 17, page 508.
What then of the apparently calm and hesitant witness who reacts in a forceful, if not too strong a fashion. Are the words found in L'affaire Saint-Fiacre, (The Saint-Fiacre Affair), Tout Simenon 17, at page 322 apposite? "He became a new man. He had been pushed to his limit. And, like all weak individuals, like all docile ones, he became unduly fierce."
As well, it may be that proper credit should be given to those whose response are not marked by hesitation, or nervousness, such as the quick-witted response offered by Roger Couchet in L'Ombre chinoise, (The Shadow in the Courtyard), Tout Simenon 17, page 207. However, a cautious, balanced approach might be wise in that it is rare, as noted, that an individual in a court room has not had time to prepare his or response. In fact, the Crown prosecutor in R. v. Peavoy (1997), 9 C.R. (5th) 83, 34 O.R. (3d) 620, 101 O.A.C. 304, 117 C.C.C. (3d) 226 (C.A.), was the subject of criticism for suggesting that the accused may have "shaped a story without fear of being contradicted by any Crown witness" in light of the disclosure brief. See pages 88-89, paras. 10-14 [C.R.].
All in all, the hesitation may be the result of an honest attempt to search one's memory, consonant with the duty to speak the truth, as in Le fou de Bergerac (The Madman of Bergerac), Tout Simenon 17, page 472-473: "Confused, the doctor searched his memory."
g) The appearance of the witness:
He tends... to allow his shoulders, his head, to hang askew, giving him a less than frank appearance..."Le port des brumes (Death of a Harbour Master),
Tout Simenon 17, page 561.
Suffice it to say that there is little, if any, merit in such badges of credibility. What may be said of the appearance of the witness in terms of the selection of clothes? For example, in his autobiography, Sur la ligne de feu [Stanké, 1988, Montréal] former Chief Justice Jules Deschênes cites the example of a witness who sported not one Iron Cross, but two, during the war crimes inquiry. See page 452.
Until a better system of evaluating credibility is devised, if ever, triers of fact will continue to be influenced by the demeanour of a witness, by his or her actions including eye-lash movements, sweaty palms, laughter, and a host of other so-called "tell-tale" signs. Not unlike the suspicious mother in La danseuse du Gai-Moulin (At the Gai-Moulin), Tout Simenon 17, page 30 who "... would watch for any expressions on the face of her son" in order to gauge the veracity of his words, judges and juries are required to attempt to evaluate not only the words of witnesses, but their demeanour.< FONT SIZE=-1>16
As the examples taken from the world of Simenon illustrate, it is neither simple nor scientific to place too much emphasis on such intangible and subjective signs. In the final analysis, the appreciation of demeanour and of the credit and reliability to be assigned to testimony is fraught with difficulties. Hence, it is important to recall the sage guidance of Georges Simenon in Le charretier de la Providence, (The Crime at Lock 14), Tout Simenon 16, at page 197: "... la réalité était invraisemblable".
- See Georges Simenon, Chez les Flamands (The Flemish Shop), Tout Simenon 17, page 373.
- See Georges Simenon, L'Ombre chinoise, (The Shadow in the Courtyard), Tout Simenon 17, page 207.
- See Georges Simenon, L'affaire Saint-Fiacre, (The Saint-Fiacre Affair), Tout Simenon 17, page 339.
- See Georges Simenon, Le fou de Bergerac (The Madman of Bergerac), Tout Simenon 17, page 459 and Liberty Bar, Tout Simenon 17, page 775 and 794.
- Quoted by former baseball commissioner Bowie Kuhn in his autobiography, Hardball - The Education of a Baseball Commissioner, [N.Y.: Times Books, 1987], at p. 3.
- See "A List of One Hundred Legal Novel" (1922), 17 III. L. Rev. 26, at p. 31. See also W.H. Hitchler, "The Reading of Lawyers" in (1928) 33 Dick. L. Rev. 1-13, at pp. 12-13: "The Lawyers [and judges] must know human nature. [They] must deal with types. [They] cannot find all them around... Life is not long enough. The range of [their] acquaintances is not broad enough. For this learning, they must go to fiction...".
- Consider as well the comments of Lord Shaw of Dunfermline in Clarke v. Edinburgh and District Tramways Company Limited,  S.C. (H.L.). 35, at page 37: "... [a] witness without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expression, in even the turns of the eyelid, left an impression [upon the trier of fact]...".
- With respect to the approach to be taken by counsel when faced with an evasive, bullying or unfair witness, Geoffrey D.E. Adair counsels that such an individual should be treated with the limited respect he or she apparently deserves. See On trial: advocacy skills, law and practice, [1992: Butterworths, Markham], at page 260.
- This passage is found in Georges Simenon's La guinguette à deux sous, (The Guinguette by the Seine), Tout Simenon 17, at page 161.
- See also Chez les Flamands (The Flemish Shop), Tout Simenon 17, page 391: "Not once did he turn his eyes away."
- See Les 13 coupables, Tout Simenon 17, at page 903. In that example, the person being questioned was startled by the fact of being looked at "in the eyes".
- By way of comparison, refer to A Death in the Tiwi islands: conflict, ritual and social life in an Australian Aboriginal community, by Eric Venbrux, [1995, University of Cambridge Press, Cambridge], at pages 154-175. Among many significant observations, we note his comment at page 154 that cultural miscommunication plays a large part in the difficulties Aborigines face in a court room.
- Jeffrey Pinsler invites counsel to ask the question whether the witness to be called will present as confident or persuasive in the manner in which he or she gives evidence or is he or she nervous and unsure? Refer to Evidence, Advocacy and the Litigation Process, [Singapore, Butterworths, 1992], at page 360.
- We are not concerned with the issues arising from a person remaining mute when faced with a damning accusation. See Les 13 coupables, Tout Simenon 17, at page 845, wherein the police drew unfavourable conclusions from the refusal of the person interviewed to answer questions. See also Chez les Flamands (The Flemish Shop), Tout Simenon 17, at page 405.
- Speaking of confident witnesses, Dr. H.E. Emson, the author of The Doctor and the Law, (3rd edition) [1995, Butterworths, Markham] remarks that doctors are accustomed to work in a highly structured micro-society which they dominate and implies that this sometimes serves to place them in a somewhat unfavourable light when testifying in the context of the adversarial system. See pages 69-70.
- At page 48 of the same novel, one reads that a person being questioned appeared sincere in the surprise he manifested at a question. Can it be said that any such observation is grounded in anything but a subjective evaluation devoid of objective review?
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