Doubtful whether judges or jurors can accurately discern from the witnesses demeanour or tone of voice whether they are telling the truth
Generally, bodily movements and the sound of the voice are better indicators than facial demeanour, but then only if the observer is acquainted with the normal mannerisms of the witness.
However, judges, lawyers, jurors etc. are generally no better than chance at picking out a liar.
R. v. Norman
Issue: whether the trial judge had determined credibility on the basis of demeanour
The credibility of witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth.
Intelligence, upbringing, education, race, culture, social status, etc. may impact a witnesses’ demeanour but have little bearing on their truthfulness.
Corroboration
Classic Rules of Corroboration
The classic rules of corroboration were generally linked to the law of competence: women and children
Judges were required to instruct jury that it was necessary to have corroborating evidence.
Corroborating evidence was very strictly defined: evidence had to confirm a material particular and implicate the accused
On the one hand, the law was under inclusive b/c it did not require corroboration for jail house confessions.
It was also highly complex and did not address the central issue: whether the witness was telling the truth.
Law of E has long considered some people and some allegations as presumptively less worthy of belief
Short of calling then incompetent, the law viewed certain people and allegations as suspect
Rules of Corroboration – not permitted to convict unless this witness’ evidence is supported by other evidence and historically has been a complex set of largely normative rules on how to figure out whose evidence required corroboration
I.e. children, sexual assault victims, accomplices — all embedded with structural and ideological assumptions)
Eventually these assumptions questioned referred to as a blind and empty formalism in need of reform
Modern Law of Corroboration
Now there are only three crimes which require corroboration: High Treason, Forgery, Procuring a feigned marriage
Corroboration rule for children is gone 659 s. CCC
Corroboration around certain crimes—s. 274 of CC abrogates any formal corroboration rule around sexual crimes
Main Vetrovec:
There are no categories of witnesses that demand corroboration
No magical way to instruct jury clear and sharp warning re dangers
Brooks – if the person’s really unsavoury, it could be mandatory. E.g. jailhouse informants.
Vetrovec v. The Queen(1982) (SCC)
Facts: Accused charged with conspiracy to traffic in heroin – evidence of accomplices obviously important
Issue:
Should the E of an accomplice require corroboration?
Should the judge comment on uncorroborated evidence of accomplice where it is testimony that might be relied upon to legally convict?
Held: Court agreed that the evidence met the old corroboration test but then said that the old CL rule should be adjusted — refer to Law Reform Commission
Caution required - identify couple of major problems with CL rule
Procedurally old rule very cumbersome and complex
Principled concern as well — no longer principled on old rationales
So court says that the old strict rule doesn’t make sense — to much focus on formal stuff and not enough on central issue
Cannot fix a rule to apply to all accomplices all that can be said is that the testimony of some may be untrustworthy and that “there is no special category for accomplices”
Rule: if a judge concludes that a witness is unsavory and that this witness plays more than a minor role in the Crown’s case, then they may offer a sharp and clear warning drawing the attention of the jury to the risks of accepting the evidence of this witness without further supporting evidence.
PRINCIPLE:in some cases, the jury should be warned about trusting a particular witness, and should look for evidence that makes them more comfortable with particular evidence
Where the judge concludes witness is unsavoury (Q of law), and
Jailhouse informants are likely unsavoury (Brooks)
“Accomplices or of disreputable character” (Vetrovec)
No longer concerned with particular kinds/categories of witnesses, but should be cautious for unsavoury witness whose testimony is central to the trial
E.g. Unsavoury reputation (criminal convictions), agreed to testify for immunity / money, has some motive besides the pursuit of truth, is a jailhouse informer, admitted to a criminal record but offered excuses for convictions [from standard Vetrovec Warning guidelines]
The witness plays more than a minor role in the Crown’s case,
“Central position” in the purported demonstration of guilt (Vetrovec)
Cn give a “clear and sharp warning to attract the attention of the juror to the risks of adopting, w/o more, the evidence of the witness.”
She may, when helpful, give examples of the type of evidence that could help, but ultimately
Not concerned w/ strict rules of corroboration evidence [which required that evidence both (1) confirms witness’ testimony in ‘some material particular’ and (2) had to implicate accused]
Any evidence that’s helpful can be relied upon if helps jury believe unsavoury witness
Goal is to have jury appreciate the risk and look for some evidence that will make them more confident re. the testimony of the unsavoury witness.
