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In, R v. H., 2016 ONCA 85, the Ontario Court of Appeal allowed an appeal from conviction for sexual assault. The key aspect of the decision concerns the trial judge’s use of the Appellant’s demeanour while testifying.   Justice Epstein, writing for the Court, had some interesting things to say about the proper use of demeanour evidence in criminal trials and cautioned trial judges about over-reliance on it:

[44]       This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of the accuracy of a witness’s testimony: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, at para. 85, “[i]t is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom.”

[45]       Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, reliance on demeanour must be approached cautiously: see R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of significance in this case is the further principle that a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at pp. 313-14.

Zachary Kerbel represented the Appellant in the appeal.   The judgment can be found here.