Archive for October 24th, 2016

There are people who lie to judges. Recently, a colleague of mine had a party/mother tell him that she was not living with a registered sex offender (it was a custody dispute)…and when the other party/father said to the judge, “that is him sitting in the audience!,” the man stood up and denied that his name was Mr. Thadious Jones (i.e., the name of the live-in boyfriend). The judge had a booking photo of the registered sex offender — and although it is plausible the man was a long lost identical twin, the more likely conclusion was the judge was lied to.

There is research that concludes judges are no better than others in determining who is telling the truth. Yet trial judges inherently must make credibility findings. This case, forwarded by Judge Wayne Gorman, illustrates challenges we face in making those credibility calls:

In MacKay v. MacKenzie, 2016 PECA 16, October 14, 2016, two neighbours became involved in a boundary dispute. The trial judge found in favour of Mackay. In doing so, the trial judge indicated in his reasons that he did not believe Mr. MacKenzie and that he did not believe the evidence of Mr. MacKenzie’s wife and sons.  The trial judge found that “the entire family lied under oath.”

On appeal, the Prince Edward Island Court of Appeal reversed the trial judge’s decision.  In doing so, the Court of Appeal suggested that a trial judge “must exercise great care before branding a witness, let alone his entire family, as liars” (at paragraphs 42 and 43): 

While the trial judge has the best perspective from which to assess credibility, and such assessments are due great deference, findings must be properly grounded.  A trial judge is free to accept or reject, in whole or in part, the testimony of any witness.  Rejection of a witness’ evidence does not necessarily mean that the witness is lying.  There are any number of reasons for rejecting the evidence of one witness and accepting the evidence of another, including that the honest witness was simply mistaken.

There are indeed occasions where it may be proper and necessary for a trial judge to label a witness a liar.  This, however, is not one of them.  The judicial determination that one is a liar can have a profoundly detrimental impact on a person’s reputation.  The person, so judged, has no defence to the judicial pronouncement filed on the public record.  A trial judge must exercise great care before branding a witness, let alone his entire family, as liars.

The trial judge’s determination was based, in part, on demeanor. The Court of Appeal indicated that a “determination that a witness is a liar should be supported by a rational explanation comprised of more than observations of the demeanor of a witness” (at paragraph 55).

Finally, the Court of Appeal indicated that “an undue amount of time elapsed between the trial and delivery of the reasons for judgment” (the trial commenced on August 20, 2014, and continued on October 9 and 10, 2014.  A decision was rendered on June 10, 2015).  The Court of Appeal suggested that the delay “could reasonably be perceived as compromising the recollection of the writer about the evidence at trial” (at paragraph 58).

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