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Achieving-Justice

The truth, the whole truth

This is a sequel to my last column about how judges arrive at the truth.

I had shared judicial commentary from a case decided by our Court of Appeal in 1952 and promised to share additional wisdom from much more recent authorities.

It’s not so easy to arrive at the truth in the face of “quick-witted, 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” (quoting from the 1952 case).

And even more difficult when a witness is honestly mistaken about something he or she sincerely believes to be true.

Noting a lack of divine insight into the hearts and minds of witnesses, the half-century old solution was to assess the testimony’s fit with what’s most likely to be true given the circumstances.

In her decision, released Feb. 19, 2019, (Schellenberg v. Wawanesa Mutual Insurance Company, 2019 BCSC 196, Madam Justice Fleming goes further to list other factors.

Her list starts with: “The capacity and opportunity of the witness to observe the events at issue.”

Next: “His or her ability to remember those events.”

A third: “The ability of the witness to resist being influenced by his or her interest in recalling those events.”

Fourth: “Whether the witness’s evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence.”

Fifth: “Whether his or her evidence seems unreasonable, improbable or unlikely, bearing in mind the probabilities affecting the case.”

And finally: “The witness’s demeanour, meaning the way he or she presents while testifying.”

Madam Justice Fleming specifically noted the danger of relying wholly on that final factor:

“Regarding the last factor, Chorny and other authorities have discussed the dangers of relying wholly upon demeanour to determine credibility, recognizing the risk of preferring the testimony of the better actor, and conversely, misinterpreting an honest witness’s poor presentation as deceptive.”

In another recent decision, (McCully v. Moss, 2019 BCSC 81, this one decided by Madam Justice Devlin, a couple of additional factors were noted.

One: “Whether the witness changes their testimony in direct and cross-examination.” And another: “Whether a witness has a motive to lie.”

You might reasonably be coming to the conclusion that judges are cynical. To the contrary, Madam Justice Devlin noted an important starting point: “The starting point in a credibility assessment is to presume truthfulness, but this presumption may be displaced”.

Judges have a lot to consider when arriving at the truth.

Might we learn from them? I suggest that the conscious consideration of each of these factors would help each of us evaluate the truth of messages we are presented with in our day to day lives.

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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