Category: Witness Testimony

Court Discusses “The Confrontation Principle” With Respect To Witness Testimony

In Duda v. Sekhon, the Plaintiff was injured in two motor vehicle collisions, and consequently commenced legal proceedings. Both actions were consolidated for trial purposes. Liability for both accidents was admitted by ICBC’S lawyer.


With respect to the first motor vehicle accident, the Plaintiff testified that she was stopped at a red light when she was rear ended by the Defendant. She was not cross-examined on this evidence by ICBC’S lawyer.


Later on during the trial, ICBC’S lawyer called the Defendant as a witness, who had a differing version of events, namely that the Plaintiff had stopped abruptly, coming to a stop before a yellow light. Interestingly, ICBC’S lawyer stated that she did not wish to use this evidence in any way to contradict the Plaintiff’s testimony, but rather to show that the impact of the collision was only minor.


The Court was critical of ICBC’S lawyer for adopting this approach, stating that ICBC’S lawyer did not seem to appreciate that the use of this new evidence would necessitate the Court weighing the evidence of the Plaintiff against the Defendant. In citing the famous British House of Lords case of Browne v. Dunn, the Court noted that if the credibility of a witness is going to be challenged by calling contradictory evidence, then the witness must be given the opportunity to address such contradictory evidence in cross-examination. In the case at bar, the Plaintiff was afforded no such opportunity.


[59] …… Rather than repeating the lengthy speeches of Lord Herschel at pp. 70 and 71 or Lord Morris at p. 79 from the Browne v. Dunn decision it is sufficient to quote R. v. Henderson, (1999), 134 C.C.C. (3d) 131 at 141 (Ont. C.A.):


this well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given a chance to address the contradictory evidence in cross-examination while he or she is in the witness box


[60] In the case at bar, given the admission of liability and the lack of cross-examination of Ms. Duda on the factual circumstances of the first accident, Ms. Duda had no notice on the record or elsewhere that this challenge to her evidence was to be mounted. To consider Mr. Sekhon’s evidence, concerning the factual details of the accident which he caused, would be manifestly unfair and an affront to the orderly presentation of evidence.


[61] It was agreed that the evidence given by Mr. Sekhon would not be considered for any purpose by this Court. This Court will proceed in that fashion, although the evidence of Mr. Sekhon would have received negligible weight if it were to have been considered.

Court Discusses How Eyewitness Testimony In General Should Be Approached With Caution

In Lozinski v. Maple Ridge (District), the Plaintiff was injured when turning left at an intersection after the light had allegedly turned red. The Plaintiff was injured, and commenced an ICBC claim for her injuries. As with most intersection collisions involving left turning vehicles and red lights, liability was contested. Counsel for the Plaintiff argued that the Plaintiff waited several seconds after the light turned red before turning, whereas ICBC’S lawyer argued that she turned immediately upon the light turning red. Numerous witnesses testified as well, with varying accounts of what actually transpired. The Court was left with the difficult job of determining which witness accounts, if any, to accept. The Court eventually accepted the evidence of multiple witnesses that the car going straight through the intersection did indeed enter after the light turned red, which assisted the court in eventually ruling for the Plaintiff. The Court also briefly commented on the law of eyewitness testimony.

[37]  There were some inconsistencies in the testimony of the witnesses. However, I did not find any of them to be dishonest or to have a tendency towards embellishment or exaggeration. My perception was that each of the witnesses attempted to describe the accident as they remembered it to the best of their abilities. However, as with much eyewitness testimony, it is likely their recollections include some reconstruction and, as such, their evidence must be approached with caution. As explained by Justice Smith in Wattar v. Lu, 2013 BCSC 603 (CanLII) at paras. 6 and 7:

A motor vehicle accident, by its very nature, happens quickly and without warning. In the moments leading up to it, drivers are not making careful observations of speed, distances or the precise location of other vehicles. Their evidence is likely to include at least some reconstruction based on what they think happened, rather than what they actually saw.

When the court must determine which of two conflicting accounts is more likely to be accurate, the most reliable guide is consistency with what little objective or undisputed evidence exists.

Court Discusses Scope Of Witness Testimony In Relation To Bias

In Mazur v. Lucas, the Plaintiff was a legal secretary. While on disability leave, she was involved in a motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, loss of earning capacity, as well as other types of damages. She alleged that the accident related injuries prevented her from returning to her employment. The Plaintiff was represented by the law firm that she worked for. The firm’s Human Resources Manager testified on behalf of the Plaintiff. Counsel for the Defendant suggested in cross-examination that there was bias in her testimony, as the firm stood to profit from any award given by the jury, as counsel for the firm was likely acting on a contingency fee basis. Counsel for the Plaintiff argued that the cross-examination was prejudicial, however the Plaintiff‘s case was not really harmed in any way by the line of questioning, which the Court ruled to be fair game. In discussing the scope of witness testimony with respect to the issue of bias, the British Columbia Court of Appeal commented :


[21] The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area.


[22] After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial. He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application.

[25] I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning.


[26] The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony.