Saturday, March 5, 2016

Not Proper to Cross-Examine a Witness on The Fact That His or Her Testimony Previously Rejected: Evans v. L.S.U.C. 2007 ONLSAP 5

[25] An additional issue that arose during argument concerned the fact that the Hearing Panel took into consideration, as urged by counsel on behalf of the Law Society, not just the facts regarding the appellant’s misconduct as found by the Judicial Council but  in addition considered the fact that the Judicial Council found that the Appellant was not a credible witness in the course of rejecting his evidence in defence of his conduct. 

Text Box: 2007 ONLSAP 5 (CanLII)[26] The issue of the admissibility of credibility findings of one tribunal before a subsequent tribunal considering the same witness has been considered by appellate courts in several cases. In R. v. Ghorvei the Court said:15
the Judicial finding in question is nothing more than a rejection of Constable Nielsen’s testimony, albeit in very strong terms.

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct.

[27]      In R. v. Schmidt the Court stated the rule as follows:16

Generally, where a witness testifies at trial, his or her credibility cannot be impugned by leading evidence that he or she was disbelieved as a witness in another unrelated trial

[28]      Finally in R. v. Karaibrahimovic the rule was stated:17

Cross-examination of a witness about whether the witness’s testimony in previous proceedings was rejected or disbelieved is irrelevant and ought not to be permitted

[29] If such cross-examination is irrelevant, and thus inadmissible, it is difficult to see why the same is not true when the evidence is sought to be adduced through means other than cross-examination such as by direct evidence or, as in this case, as part of an agreed statement of facts. Counsel for the Respondent submitted that the principle in those cases applies to cross-examination of a witness only and is an application of the collateral evidence rule. It was submitted that the Judicial Council’s pejorative opinion of the appellant’s credibility was a fact “related[d] directly to the actual issues to be considered by the Hearing Panel.” It was argued that the Judicial Council’s finding regarding the appellant’s credibility, was a proper consideration “in the determination of the impact in the restoration on public confidence.” We do not accept this argument.

15 (1999), 138 C.C.C. (3d) 340 (Ont.C.A.) at paras. 30 and 31.
16  (2001), 151 C.C.C. (3d) 74 (B.C.C.A.) at para. 30.
17  (2002), 164 C.C.C. (3d) 431 (Alta.C.A.) at para. 7.

Text Box: 2007 ONLSAP 5 (CanLII)[30] The respondent is seeking, and the Hearing Panel agreed, to give the adverse credibility finding independent evidentiary value as a fact relevant to the Hearing Panel’s decision. The precedents referenced make it clear that an opinion regarding the credibility of a witness is “irrelevant.” As evidence it has no tendency to prove or disprove any fact usually in issue. Policy also supports exclusion. How can the target of the negative opinion negate the evidence? What could be adduced to show the credibility opinion was ill-founded? Furthermore the logic is suspect. In circumstances such as these a negative credibility finding is virtually inevitable. It would be astonishing if the Judicial Council in a case with disputed facts which it finds over the subject judge’s denial would be otherwise than pejorative about the subject judge’s credibility. The adverse outcome of the hearing and the negative credibility assessment are essentially tautological.

[31] As we understand the respondent’s argument, it is that the fact of being disbelieved is a black mark against the appellant, which the public would view as evidence of unsuitability to be a member of the bar. For the reasons indicated, as well as the Court of Appeal’s express statement in Ghorvei that “[such] fact, in and of itself, does not constitute discreditable conduct” we find that the Hearing Panel erred in law in its consideration of the Judicial Council’s negative findings regarding the appellant’s credibility. That finding was inadmissible as an independent fact proving an occasion of disreputable conduct or bad character relevant to any issue before the Hearing Panel. It was the Judicial Council's factual findings regarding the allegations before them about the appellant's alleged conduct that mattered for the Hearing Panel's issues. The Judicial Council's negative credibility finding regarding his denials, which was an inevitable and necessary conclusion in order to make the factual findings that it did, could not as a matter of logic or principle have any independent evidentiary value before the Hearing Panel. The appellant, in the Agreed Statement of Facts, agreed that the negative credibility finding had been made. He did not agree that such was admissible evidence to be used as a factor against restoration and, even if he had, his agreement is proper only with respect to facts and cannot change the applicable law. In the circumstances it is not necessary to consider whether, had this been the only error, this Panel would have disagreed with the Hearing Panel’s denial of restoration.

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