Hergott: How judges arrive at the truth

Latest column from lawyer Paul Hergott

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 skillful 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 February 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 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.

Missed last week’s column?

Support while recovering from serious injury

Like us on Facebook and follow us on Twitter.

Just Posted

Okanagan table tennis players thrive at 55+ games

Nine Salmon Arm residents were tough to beat at the games in Kelowna last week

Lakeview Water System users in West Kelowna under water quality advisory

A water quality advisory has been issued for parts of West Kelowna.

Bicycle incident on Daimer Drive in West Kelowna

One man has been taken to hospital

Kikinee Salmon Festival returns to Kelowna for another year

The Kikinee Salmon Festival is taking place this Sunday at Mission Creek Regional Park in Kelowna.

Bulls on parade down Glenmore

A small bull ran into traffic on Glenmore Road in Kelowna earlier this morning

‘It’s almost surreal’: South Okanagan fire chief, sidekick Sammy recap rescue mission in Bahamas

Chief Larry Watkinson and Sam the disaster dog spent 8 days assisting a search and rescue team

Defense says burden of proof not met in double murder case against Victoria father

Closing statements begin in trial for man accused of killing daughters Christmas 2017

B.C. dog breeder banned again after 46 dogs seized

The SPCA seized the animals from Terry Baker, 66, in February 2018

Surrey mom allegedly paid $400,000 for son in U.S. college bribery scam

Xiaoning Sui, 48, was arrested in Spain on Monday night

Three dogs found shot dead in Prince George ditch

The three adult dogs appeared to be well cared for before being found with gunshot wounds, BC SPCA says

Vancouver police could be using drones to fight crime by end of year

The police department has already purchased three drones, as well as three others for training

B.C. party bus company to be monitored after 40 intoxicated teens found onboard

Police received tip teens and young adults were drinking on party buses and limousines in Surrey

Kootnekoff: Wrongful dismissal award against B.C. law firm

A recent case from a Vancouver-based law firm

Okanagan ski racer chosen for grant in end game

Makena Kersey, 18, has called it a career following a gruesome leg injury, but story inspires grant

Most Read