R v Perrone: The Need for Appellate Courts to Address both Credibility and Reliability of a Witness

This case is concerned with the credibility and reliability of a witness, and whether or not the trial judge erred in her assessment of the complainant’s evidence and provided an unreasonable verdict.

On February 19, 2015, the Supreme Court of Canada (“SCC”) dismissed the appeal of R v Perrone, 2014 MBCA 74 [Perrone] from the Manitoba Court of Appeal (“MBCA”). The SCC affirmed Monnin J.’s (majority) decision that “the trial judge, through her reasons, has confirmed that she assessed both the credibility and reliability of the witness taking into account the areas of concerns which she outlined” (Perrone, para 48). In dismissing the appeal, the analysis that is now binding to all court levels in Canada is the one provided by Monnin J. of the MBCA.

Although this case lacks the usual glamour associated with an SCC case, what is most interesting about the judgment of the MBCA is that the majority and dissenting opinions arrived at two wildly different conclusions based on identical evidence and jurisprudence.

Evidence at Issue

On the evening of the sexual assault, the complainant had smoked marijuana, and consumed seven beers and two shots of hard liquor.

At the preliminary inquiry, the complainant testified that she had been “in her own world” and it was “kind of where [she didn’t] remember anything like around [her].” The complainant had also testified that she was so intoxicated that she could not be sure what occurred (para 13). However, on cross-examination, the complainant conceded that she had been untruthful at the preliminary inquiry because she was upset and angry that the accused was in the courtroom (para 14).

On cross-examination, the complainant also indicated for the first time that she was suffering from psychosis (para 15).

Standard of Review

According to the SCC in R v WH, [2013] 2 SCR 180 [WH], the test for unreasonable verdict applies when the verdict is based on an assessment of witness credibility. However, in applying the test, the appellate court “must show great deference to the trier of fact’s assessment of witness credibility given the advantage it has in seeing and hearing the witnesses’ evidence” (WH, para 30).

Analysis

According to the Ontario Court of Appeal in R v Morrissey (1995), 22 OR (3d) 514 (ONCA) [Morrissey], testimonial evidence given by a witness can raise concerns of both veracity and accuracy. Veracity relates “to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be[,]…” and accuracy relates to the witness’s ability to “accurately observe, recall and recount the events in issue” (Morrissey, 526). When a court is concerned with a witness’s veracity, they speak of the witness’s credibility. When concerned with the accuracy of a witness’s testimony, they speak of the reliability of that testimony (526). As such, reliability and credibility are distinct from one another and the trial judge must address both in order to reach a just verdict.

Credibility

Based on the definition of credibility outlined in Morrissey, it is clear that the complainant’s untruthfulness speaks to her credibility as a witness. Although both Monnin and MacInnes JJ. conceded that the trial judge considered credibility, their difference in opinion stems from the trial judge’s assessment of the witness and the impact the assessment had on the reasonableness of the verdict.

It is a statement of fact that truthfulness is our most absolute law with respect to court proceedings and is the foundation on which our justice system rests. In spite of this, the trial judge concluded that the complainant “may well have made a mistake or was untrue with respect to some aspects of her preliminary inquiry testimony. That being so, [the complainant] provided an explanation before this court which was plausible in the circumstances.”

I agree with MacInnes J. that the complainant’s “total disregard for her oath” and “cavalier attitude for the importance of telling the truth in a court proceeding” (Perrone, para 62) should alone cause considerable concern about the credibility of the witness. That being said, to keep in line with the SCC’s judgment in WH, it was required of both the MBCA and the SCC to “show great deference to the trier of fact’s assessment of witness credibility given the advantage it has in seeing and hearing the witnesses’ evidence.” While the assessment made by the trial judge may be controversial, it was well within the trial judge’s purview to determine whether or not the complainant’s explanation for her untruthfulness was sufficient enough to overcome her untruthfulness. Additionally, since neither the MBCA nor the SCC had advantage of being present in the court room during the trial, the person who was in the best position to assess the credibility of the witness was the trial judge. On these grounds, deference should be given to the decision of the trial judge.

Reliability

Unlike credibility, Monnin and MacInnes JJ. took opposing positions as to whether or not the reliability of the complainant had been addressed by the trial judge. Although Monnin J. conceded that the trial judge “made no explicit finding…” on reliability, he ultimately found that the trial judge considered the evidence of the complainant with respect to her psychosis and level of intoxication (Perrone, para 38). MacInnes J. on the other hand, held that the complainant’s mental disability and level of intoxication gave rise to concerns of reliability, which the trial judge failed to consider.

In order to determine whether or not the trial judge addressed the reliability of the complainant, it is necessary to compare Perrone to relevant case law.

With respect to intoxication, the complainant in R v Jussila, 1997 ABCA 43 [Jussila] had consumed marijuana and testified to having “weird and bizarre dreams…[and] admitted that his memory was affected by the marijuana and that he could not recall everything that was happening” (Jussila, para 5). In spite of this, the trial judge found that the complainant’s “evidence was straightforward and clear in all respects when he said he was able to distinguish between the time when he was having dreams and the times he was not….” The Alberta Court of Appeal concluded that “the trial judge not only found the complainant to be a credible witness, but that in doing so, he also measured the reliability of his evidence, mindful of the frailties of the complainant’s memory due to his mental state at the time the events were unfolding” (para 11).

Also, in R v NLP, 2013 ONCA 773 [NLP], the Ontario Court of Appeal found that the trial judge had addressed reliability in finding that the complainant, although intoxicated, gave a reliable statement with respect to the sexual assault (NLP, para 28).

Similarly to the statements of the trial judges’ in the above two cases, the trial judge in the present case acknowledged the fact that the complainant had consumed alcohol and utilized drugs to the point of intoxication, but was ultimately satisfied that the complainant knew “what was transpiring around her and provided the requisite details to satisfy [the trial judge] that the elements of the offence of sexual assault have been proven beyond a reasonable doubt…” (Perrone, para 16).

Concerning mental disorders, the Ontario Court of Appeal in R v Nicholson (CD) (1995), 86 OAC 68 (ONCA) [Nicholson] found that the trial judge had failed to address reliability and “appeared to use the [multiple personality] disorder as an explanation or excuse for [the witness’] fragmented recollection of the events” (Nicholson, para 3).

However, Perrone can be distinguished from Nicholson for two reasons. First, in Nicholson, the multiple personality disorder of the witness went to one of the issues to be determined in the case. As a result, there was a direct relationship between the disorder and the facts of the case. However, in Perrone, the complainant testified that she had been receiving treatment for her psychosis at the time of the sexual assault. Second, there was no evidence that connected the illness to the sexual assault or the ability of the complainant to properly recollect the sexual assault.

In applying relevant case law to Perrone, I am in agreement with Monnin J. that the trial judge made an implicit finding of reliability by “making a determination that she found the complainant’s evidence to be credible and the complainant to be a credible witness.” As such, defence should once again be shown to the trial judge’s assessment of the complainant.