Tips to Assessing Credibility

One of the most difficult tasks for a discipline panel is assessing the credibility of witnesses, particularly in sexual misconduct cases where most of the key events do not have corroborative witnesses. In Taliano v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3529 (CanLII), https://canlii.ca/t/jpw2q the Court upheld findings of sexual abuse and sexual impropriety. Embedded in the Court’s decision are some indications of why accepted the discipline panel’s assessments of credibility and concluded that the panel’s assessment did not contain a palpable and overriding error:

  • The reasons of the panel indicated that it “evaluated the totality of the evidence, engaging with the substance of the live issues and identified what was material to its decision”.
  • It is open to a panel to give more weight to oral evidence that was subject to cross-examination than to a business record that, while admissible, could not be subject to a cross-examination.
  • It is open to a panel to still rely on a witness’s evidence where a “failure to recall statements on tangential issues made in a stressful context such as a hospital [and the failure to recall] is not a factor that would have any significant effect on the reliability assessment of a witness.”
  • While exaggeration or embellishment by a witness is a reason to find their evidence less credible, the absence of exaggeration or embellishment does not make the evidence or a witness more credible.
  • Where there is inconsistency in a witness’s evidence, such as not mentioning a key detail in an initial interview with a regulator’s investigator, the panel can accept a plausible explanation for the omission, such as embarrassment and shame when talking to an uninvited stranger.
  • A common challenge to credibility findings is that the panel engaged in uneven scrutiny of the witnesses of one side over the other. However, where the panel analyzes the concerns about all witnesses (e.g., their inconsistencies), the “fact that it was more troubled by the inconsistencies in the defence evidence than those in the College’s evidence does not mean that it subjected the former to an unfair level of scrutiny.”
  • Similarly, it is open to a panel to differentiate the degree of hostility demonstrated by two witnesses where it analyzes whether that degree of hostility is understandable in the circumstances.
  • It is important for a panel addressing concerns about collusion among witnesses to describe the basis for a finding that witnesses’ evidence was tainted by collusion, which can include a consideration of whether the communications among witnesses involved sharing details of the incident or whether the testimony of the witnesses who communicated with each other used strikingly similar language in their descriptions of the events.

Overall, hearing panels’ findings of credibility are more likely to be accepted where they engage appropriately with the issues raised in the course of the hearing.

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