HE SAID–SHE SAID

 

It’s not a Credibility Contest!

[1]          We often hear the term used “it’s he said — she said” to explain how a judge will decide a case concerning the testimony of two witnesses. Who should the judge believe? A credibility contest?

[2]          It is well settled in law that it’s not actually a credibility contest. The judge doesn’t need to decide whose evidence to believe. A trial judge doesn’t have to “prefer” one version of events over the other. The ultimate question is whether a person’s evidence which is not “preferred” (the competing version) may nevertheless still be capable of leaving a judge with reasonable doubt.

[3]          In a recent decision the Ontario Court of Appeal in R. v. Esquivel-Benitez 2020 ONCA 160, allowed an appeal from sexual assault for several reasons including the fact that the trial judge treated the testimony of the two witnesses as being a credibility contest. The language the trial judge used included the following:

“I prefer the complainant’s evidence”

“I find the complainant’s version of facts to be more credible”

“I am left with a significant doubt as regards [the appellant’s] evidence …”

“I find this evidence to be somewhat suspect and contrived. As indicated, in terms of credibility I prefer [the complaint’s] version of the facts, which I find more credible.”

[4]          The Court stated that the trial judge failed to “step back” and ask whether the whole of the evidence left her with a reasonable doubt. A new trial was ordered.