The Failure of the Trial Judge to Resolve Inconsistencies in the Evidence on Significant Issues

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The Failure of the Trial Judge to Resolve Inconsistencies in the Evidence on Significant Issues

While a trial judge is not required to resolve every inconsistency in the evidence, the trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses:

G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356; R. v. Dinardo, 2008 SCC 24 (CanLII),
[2008] 1 S.C.R. 788, at para. 31

The failure to articulate how credibility concerns are resolved, particularly in the face of significant inconsistencies in a complainant’s testimony, may constitute reversible error, as an accused is entitled to know why the trial judge is left with no reasonable doubt.

R. v. D.H., 2016 ONCA 569 (CanLII).

A trial judge’s assessments of credibility are accorded very considerable deference on appeal, but that deference is premised, in part, on the trial judge sufficiently explaining how significant discrepancies that could undermine credibility and reliability have been resolved.

Stuart O'Connell - http://www.leadersinlaw.ca/
Stuart is Lead Counsel at O’Connell Law Group (http://www.leadersinlaw.ca/) and works in association with the Firm.
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