Misstatement By Judge Rehashes Debate On Witness Credibility: New Trial Ordered In R. v. Sue

A possible misstatement by a British Columbia trial judge has led to the order of a new trial in R. v. Sue, 2011 BCCA 91.  In the decision released March 2, the majority of the B.C. Court of Appeal (“BCCA”) found that the erroneous statement made by the Provincial Court’s Judge Bagnall, who said that Min Yee Sue had used an interpreter to testify when he, in fact, had not, was enough to constitute a “miscarriage of justice” within s. 686(1)(a)(iii) of the Criminal Code.

The steep consequences of what may have been a mere slip of the tongue are generating new questions about the importance of viva voce evidence in trials and the distinction between the substance of the testimony and the demeanour of the person testifying.

Misinterpretation: The Facts

In June 2006, the Vancouver police arrested Mr. Sue and three other men after discovering a large amount of drugs in the kitchen of a basement apartment.  Many of Mr. Sue’s personal documents, including his driver’s license, a citizenship application and banking records were scattered throughout the suite outside of Mr. Sue’s bedroom.

Charged with the possession of drugs, Mr. Sue decided to testify at his trial without the aid of an interpreter even though English was not his first language.  Mr. Sue’s co-accused did not testify but used an interpreter to understand the proceedings.  Mr. Sue testified that he lived with his wife in Toronto but had a girlfriend in Vancouver and stayed at his friend’s place every time he visited.  He denied any involvement with the drugs and said that the documents could have been brought over when his friend had moved from his previous residence.

The trial judge convicted Mr. Sue and, in her oral reasons, commented on the accused’s credibility.  She said:

He was asked by his counsel why he did not move his belongings into the room where he was sleeping. Making allowances for the fact that Mr. Sue was testifying through a translator, his explanation for this was still nonsensical. He said there was no point in moving the suitcase because he had known Mr. He for so long.


I do not believe Mr. Sue’s assertion that he had nothing to do with the drugs found in the suite. I have taken into account the following certainties in assessing his credibility when he makes this assertion. He was present in the suite. There was a very large quantity of drugs and a large amount of money in the suite. The key to the sliding glass door to the suite was in his possession.


My conclusion in respect of Mr. Sue’s credibility is based primarily on the nonsensical explanations he gave for the presence in the suite of a large number of documents which would have been important to him and indeed some of them he indicated were very important to him. I do not believe him nor does his testimony raise any doubt in my mind.

Mr. Sue appealed, claiming that the trial judge’s inaccurate statement showed she had misapprehended the evidence and wrongly concluded that he was in possession of the drugs.

Miscarriage of Justice: The BCCA Ruling

Although all three judges wrote separate opinions, Justice Ryan and Justice Saunders agreed that “a reasonable and well-informed person outside the judicial system” would have perceived that Mr. Sue’s trial was unfair, or at least appeared to be so.  Justice Saunders emphasized that the case turned on Mr. Sue’s credibility.  There was a “substantial body of evidence” against him and the existence of any reasonable doubt would have wholly depended on whether the trial judge believed the accused’s explanation.  The trial judge’s erroneous comment showed that the starting point of her assessment of Mr. Sue’s credibility was already inaccurate.  Justice Ryan found that the reasonable person would have believed the trial judge had not paid attention to Mr. Sue’s demeanour when he testified and that, as a result, he did not have a fair trial.

Justice Lowry, on the other hand, wrote a dissenting opinion.  He held that the trial judge’s reasons showed she had not misunderstood or failed to properly state the evidence.  He found that the fact that Mr. Sue had testified without an interpreter was not substantive evidence of anything and played no role in the trial judge’s reasoning process.  Rather, the trial judge had shown that her reservations about Mr. Sue’s credibility stemmed from the substance of his testimony, including the “nonsensical explanation” for all the personal documents lying around the suite.  Finally, Justice Lowry wrote that it is not necessary that a trial judge consider a witness’ demeanour if it is otherwise clear that the testimony is not credible.  Rather, a judge should focus on the substance of the evidence.

Misjudgement? Right Principles, Wrong Case.

The importance of in-court testimony has long been upheld by English, then Canadian courts.  We elevate the truth of evidence in court because it is given under oath, can be tested and cross-examined by opposing counsel, and the trier of fact can observe and assess the witness.  The Canadian judicial system holds that it is one of the most effective ways to test a witness’ credibility.

Given these reasons for in-court evidence, the broad principles articulated by the majority’s reasons are sound.  It is important that the trier of fact assess the demeanour of a witness giving evidence in trial and it is one factor to consider in lending weight to the testimony.

That said, an assessment of credibility encompasses more than an observation of a witness’ demeanour.  In fact, as was maintained by Justice Lowry, what is most important is the substance of the evidence itself.  An irregular demeanour might cast a shadow of a doubt on a consistent and logical narrative, but an inconsistent or illogical story would most certainly undermine a sincere demeanour.  Ultimately, the trier of fact is trying to gauge the reliability of the evidence proffered.

Was there a miscarriage of justice in this case?  Recall the following comments made by Justice LeBel in R. v. Khan, 2001 SCC 86:

Whether a “miscarriage of justice” has occurred asks whether the trial was unfair, or alternatively whether an appearance of unfairness was created…  We must look at whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so.

Whether unintentional or otherwise, the trial judge undoubtedly made a mistake.  It might have been a critical mistake if her decision had turned on her assessment of Mr. Sue’s demeanour.  However, it is clear from her reasons that the trial judge found the accused’s explanations to be “nonsensical” and inconsistent with the rest of the evidence against him.  Would a reasonable and well-informed person considering the whole of the circumstances have thought that Mr. Sue had an unfair trial?  I would say no.  Although demeanour can be an important factor in testing credibility, it was not material to the trial judge’s decision here.  Rather, the B.C. Court of Appeal’s reversal of Justice Bagnall’s conviction and degraded threshold for a “miscarriage of justice” may have brought about more uncertainty than peace of mind for both future trial judges and Mr. Sue.

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