Robledano v Jaconto 2018 BCSC 152 reviewed the law relating to the criteria to be used when assessing the truthfulness/credibility of a witness.
The case involved a claim of same sex marriage where it was disputed between the parties that such a relationship existed prior to death.
The court reviewed the law relating to assessing the truthfulness of a witnesses testimony and found the claimant’s testimony to be more trustworthy than the opposing family members.
The court followed the decision of Faryna v. Chorny (1952) 2 DLR 354 ( BCCA) at 357 stating that the proper approach to assess the truthfulness of any interested witnesses testimony is based on:
“ The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth.
The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.
In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”
The factors identified in Bradshaw v. Stenner 2010, BCSC 1398 when assessing whether the evidence of a witnesses, truthful, but also accurate are:
- The capacity and opportunity of the witness to observe the events at issue;
- his or her ability to remember those events;
- the ability of the witness to resist being influenced by his or her interest in recalling those events;
- the internal and external consistency of the witnesses evidence; did his or her testimony change between direct and cross examination; are there inconsistencies in between, prior statements, discovery evidence and his or her evidence at trial;
- whether the witnesses evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence;
- whether his or her evidence seems unreasonable, improbable are unlikely, bearing in mind the probabilities affecting the case; and-the witnesses demeanor, meaning the way here she presents while testifying.