[1]To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none or all of the evidence given by a witness.
[2]When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on it in deciding this case. But here are a few questions you might keep in mind during your discussions.
[3]Did the witness seem honest? Is there any reason why the witness would not be telling the truth?
[4]Does the witness have any reason to give evidence that is more favourable to one side than to the other?[1]
[5]Was the witness in a position to make accurate and complete observations about the event? Did s/he have a good opportunity to do so? What were the circumstances in which the observation was made? What was the condition of the witness? Was the event itself unusual or routine?
[6]Did the witness seem to have a good memory? Does the witness have any reason to remember the things about which s/he testified? Did any inability or difficulty that the witness had in remembering events seem genuine, or did it seem made up as an excuse to avoid answering questions?
[7]Did the witness seem to be reporting to you what he or she saw or heard, or simply putting together an account based on information obtained from other sources, rather than personal observation?[2]
[8]Did the witness’s testimony seem reasonable and consistent? Is it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion?
[9]Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because s/he failed to mention something? Is there any explanation for it? Does the explanation make sense?
[10]What was the witness’s manner when he or she testified? Do not jump to conclusions, however, based entirely on how a witness has testified. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or most important factor in your decision.[3]
[11]These are only some of the factors that you might keep in mind when you go to your jury room to make your decision. These factors might help you decide how much or little of a witness’s evidence you will believe or rely on. You may consider other factors as well.
[12]In making your decision, do not consider only the testimony of the witnesses. Take into account, as well, any exhibits that have been filed and decide how much or little you will rely on them to help you decide this case. I will be telling (or, have already told) you about how you use admissions in making your decision.
[1]It must not be suggested to the jury that they can assume that the accused, by virtue of his or her status as the accused, would lie to escape conviction, as this undermines the presumption of innocence: R. v. Laboucan, [2010] 1 S.C.R. 397, at paras 14-18.
[2]Paragraph [7] is directed at witnesses who may have put their testimony together, or embellished their account from outside sources, such as media accounts or other sources. It may require modification where the source is records whose accuracy, and the propriety of consulting them, is not in issue.
[3]Where a witness is testifying through an interpreter, this instruction may be expanded to point out the particular difficulties in assessing such a witness’s testimony.