Judge Wayne Gorman shared this case which you might find of interest.  Sometimes we do need to determine credibility and it isn’t always easy.  When writing orders that discuss credibility findings, I often include this language:

Determining credibility is among the most difficult tasks a trial judge has.  Judges make factual findings. Judges are not necessarily better than others at figuring out who is telling the truth.  For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did not better than chance in telling who was being truthful and who wasn’t.  See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013).  Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.”  Although I have made the necessary credibility finding in this case I did so cognizant of what Judge Hand said.

Here is what Judge Wayne Gorman shared:

In R. v. Heintzelman, 2019 BCCA 480, December 5, 2019, the accused was charged with two counts of sexual assault. He operated a massage business. Two complainants testified that he sexually assaulted them during massages. The evidence of both complainants was entered to prove the two charges and as similar or other act evidence.  One of the complainants (TT) indicted that she had not initially complained to the policy because she had “mental health issues”.

The accused was acquitted at trial.  However, on appeal to the summary conviction appeal court, the acquittals were set aside and a new trial was ordered.  The accused sought leave to appeal to the British Columbia Court of Appeal.

The Trial Judge:

In acquitting the accused of both charges, the trial judge indicated that “[e]ach of the witnesses in this case presented as eminently credible. There was nothing in their demeanour or in the presentation of their evidence which caused me to doubt their veracity or the accuracy of their recollection”.

In relation to the weight to be given to the similar fact evidence, the trial judge indicated that there were “two factors which tend to reduce the corroborative weight to be given to the ‘similar fact evidence’ in this case”.  He described one of these factors in the following manner:

I have very little information to assist me in assessing the impact, if any, of T.T.’s mental illness or her medication on the reliability of her evidence.

The Appeal Court Judge:

In setting aside the acquittals, the appeal court judge held that the trial judge erred in concluding that the weight to be given to the similar fact evidence was reduced because of T.T.’s mental health issues:

…in this case the trial judge reasoned that nothing in T.T.’s demeanour caused him to question either her veracity or the accuracy of her recollection. He reasoned that there was nothing inherently implausible about her evidence. He also said at para. 4 of his reasons that there was no evidence, whether from T.T.’s treating doctor or other sources, upon which he could assess “the impact, if any, of her psychiatric condition or medication on the reliability of her evidence”.

In my view, these findings demonstrate that there was no evidence from which to conclude that T.T.’s reliability was affected by her mental health diagnosis or medication. Without any evidence of a connection between T.T.’s psychiatric history and her reliability, the judge’s decision to reduce the corroborative weight given to her testimony must have been based on the implicit assumption that the mere fact of T.T.’s psychiatric history impacted her reliability.

In light of all of that, the trial judge’s conclusion that the corroborative weight to be given similar fact evidence tended to be reduced because of the effect of some lingering doubt arising from the psychiatric condition and/or the medications, for which there was no evidence, in my view was an error of law.

The British Columbia Court of Appeal:

The British Columbia Court of Appeal, per Dickson JA, denied leave to appeal, concluding as follows (at paragraph 23):

Contrary to Mr. Heintzelman’s submission, the trial judge did not accept his evidence. Although he commented favourably on Mr. Heintzelman’s demeanour at para. 12 of his reasons, at para. 18 the trial judge made it abundantly clear that he was unable to decide whom to believe. On that basis, he felt himself obliged to acquit. However, as the summary appeal judge correctly recognized, the trial judge erred in reducing the weight to be accorded to the similar fact evidence based on T.T.’s mental health.