Liar(s), liar(s), pants on fire – credibility revisited

• by David Tobin

Originally published in the OFLM 2023-6 edition


As a lawyer prepares their client for trial, Justice Kraft in F. v. F. reminds us that it is crucial that they examine the inconsistencies in their witnesses’ stories. A lawyer cannot abdicate their duty by permitting a client to tell a story that is obviously inconsistent or implausible.  


Credibility, inconsistency and lying

The facts of F. v. F. (2023 ONSC 2682) include cheating spouses being caught in the act in an underground parking garage, safes full of cash and precious metals, and perjury. Although reminiscent of a soap opera episode, they are not the important part of this case.

Justice Kraft’s review of the law of credibility is what matters and can be found at paragraphs 4 to 10 of the decision.  

Justice Kraft reminds us that credibility is not an all or nothing determination. A judge can accept a witness’ story in some respect and find them not credible in other respects – even if the findings of their lack of credibility goes to the heart of the matter at issue.

Justice Kraft makes a distinction between being

1) not credible as a result of inconsistency in one’s story, and

2) not credible as a result of deliberate lying.

The latter, “may well cause the trier of fact to question or reject the entirety of a witness’ testimony”.

With respect to lying under oath, Justice Kraft was concerned about the husband who lied under oath, yet still accepted much of his evidence. Justice Kraft found that the husband

“…lied under oath when he testified in court that he was in the minivan with Veronica in the parking garage. [Seva] was self-represented at trial. During his closing submissions, he said that Veronica was not the woman with whom he was found in the minivan.”

However, while this hurt his credibility it was not enough for the wife to overcome her own credibility issues.

With respect to internal inconsistencies in a witness’ testimony, this can undermine a trial judge's trust in the accuracy of testimony. In this case Justice Kraft found that the wife was the one who likely stole items from two safes belonging to the husband, in part because the wife accused the husband of removing the safe from the walls with a crowbar.

When she was questioned about why the husband would do this when he had the combination to the safes, the wife answered, “he did so because he had a plan to call the police and accuse her of robbing him.”

The problem with this explanation is that when the wife was asked whether the husband had, in fact, called the police and reported that she robbed him, “she acknowledged that he did not do so”.

Justice Kraft found that “this answer by [the wife] is nonsensical and I find it to be disingenuous.”

This inconsistency undermined the wife’s testimony on the key issue of who stole the family’s cash and precious metal.


Credibility and reliability

Although F. v. F. did not address the point head on, it is important to remember the difference between credibility and reliability.

The case of K v. S. (2022 ONSC 6413) specifically addressed this point at paragraph 28 where Justice Agarwal wrote:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

In essence credibility means truthfulness and accuracy where as reliability is only about accuracy.

Justice Kraft found neither Mr. F. nor Ms. F. to be credible and thus it flowed that they were not reliable witnesses.


Preparing a witness

Understanding the criteria through which a judge will assess a witness’ or party’s credibility is crucial to properly prepare your witness for a hearing.

A helpful list of criteria in assessing credibility has been repeated by different judges in both family law and non-family law cases. At paragraph 244 of the case N. v. F., 2020 ONSC 7789, Justice Conlan lists the questions a judge asks themselves when considering a witness’ credibility. Those questions are as follows:

a) Did the witness have an interest in the outcome or was he/she personally connected to either party?

b) Did the witness have a motive to deceive?

c) Did the witness have the ability to observe the factual matters about which he/she testified?

d) Did the witness have a sufficient power of recollection to provide the court with an accurate account?

e) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions?

f) Was there an internal consistency and logical flow to the evidence?

g) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased?

h) What cultural factors need to be considered in the manner in which the evidence is provided?

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?

These questions and the answers do not lead to a scientific determination of a witness’ credibility. In fact, in Al-Sajee v. Tawfic (2019 ONSC 3857), Justice Chappel reminds us that  the Supreme Court of Canada stated in R. c. Gagnon (2006 SCC 17) at paragraph 20 that it is not always possible "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events".


Lessons for counsel

F. v. F. and the additional above cases highlight the importance of presenting your witnesses as credible and the lens through which a judge determines credibility.

How your witnesses present in court is very much in control.

If your witnesses are not prepared for a hearing, they may feel confident that they can outsmart the other lawyer and convince the judge of their ‘story’.

Your witnesses, and in particular your client, need to be challenged early on with respect to the veracity of their story. They need to be reminded that they are not expected to be a perfect person and where they made mistakes or had lapses in judgment, it plays much better to own up to them rather than dance around them.

There are few things more heartbreaking during the course of a trial than watching your client try to dig their way out of their own grave.

Thus, the practical take away from these cases is that as a lawyer prepares their client for trial, it is crucial that they examine the inconsistencies in their witnesses’ stories.

Having a client spin a yarn which is obviously inconsistent or implausible is an abdication of duty. The holes in the wife’s story in F. v. F. could have been easily spotted with better preparation – which could have saved the wife embarrassment, among other things.