R v Smith, 2020 ONCA 632
Issue on Appeal
This appeal is for a conviction for aggravated assault from 2012. The main issue is whether the trial judge made an error by making a finding that one of the witnesses was credible on the basis that they did not embellish their evidence.
The Appellant’s counsel argued that one of the witnesses, Darlene McKoy, a former girlfriend and mother of the appellant’s child was not credible. This argument had previously been made at trial. The argument is that she had a motive to fabricate her evidence, as she became involved in a custody battle over their child.
Facts Heard at Trial
At trial, the main issue was the identity of the alleged perpetrators. The appellant was charged with a co-accused, Paul Gallant, for starting a fight with strangers. This resulted in the stabbing of Enayat Thompson, the victim, in the neck. There were no eyewitnesses and the victim was unable to identify the perpetrators. The prosecution's case relied on the testimony of Darlene McKoy, who testified that she overheard a conversation with the appellant and Gallant about the fight. McKoy further testified that she had received text messages the night of the incident after the fact, with the appellant stating that he had done something bad. McKoy further stated that the appellant explained a fight had occurred and Gallant was there with him, and that after he had run to the hospital and gotten into a cab.
In the analysis, the Court relies on R v Alisaleh, 2020 ONCA 597 to state that it is well established law that because a witness does not embellish their evidence, it does not mean it enhances their credibility. The Court further relies on R v Kiss, 2018 ONCA 184 to state that the present case is not a situation where a witness’s lack of embellishment was relied on to enhance credibility. The trial judge took note of the absence of embellishment in response to the appellant’s argument that the witness, McKoy, was simply reiterating news reports as her testimony.
The trial judge made a finding of credibility based on the entire context of the evidence. McKoy’s evidence was corroborated by cab dispatch reports and phone records. The Court states that it was satisfied with trial judge’s finding of credibility of the witness and was attuned to concerns about her testimony given the context of the ongoing custody battle.
The Court concluded that the trial judge did not make any errors and dismissed the appeal.