Judges accept or reject a witness's testimony by asking themselves 2 questions. Is the witness credible (i.e. is the witness telling the truth as the witness recalls it)? If the witness is credible, is the testimony reliable (i.e. is the witness able to make an accurate observation or recall or describe the events properly)?
Judges often review factors that would indicate that a witness' testimony may be unreliable or untruthful. For example, they may note that the witness' evidence conflicts with another document, contradicts what the witness previously said, or demonstrates favouritism or bias. They may then say: "when this witness' testimony differs from other testimony, the other testimony is preferred." Judges usually refrain from commenting on credibility directly.
However, occasionally a witness' lies are just so obvious that a judge has to comment. In Wilson v. Semon, a 2014 Ontario Superior Court of Justice decision, the judge could not restrain himself.
Judgment Debtor Examination
The creditor was attempting to examine the judgment debtor in aid of execution. The creditor was having problems; the debtor was not cooperating. The lack of cooperation was so bad that she had been sentenced to, and served, 30 days in prison for contempt of court. She then re-attended at an examination in aid of execution and, at the creditor's request, was brought before the same motions judge for the 5th time.
The debtor knew that she was in trouble when the lead-in to the reasons for decision stated,
"If it was not clear before (which I believe it was), it can now be stated beyond any doubt that Ms. Semon is a liar. She has misled counsel for the Applicant throughout this process about where her money is and where and to whom she has sent it. She has also misled the court, and has demonstrated that her previous apologies to the court for her actions were altogether hollow."
The judge then went on to describe in graphic detail all the instances in which the debtor lied in her examinations. One of the reasons why she lied, she said, was because she did not want to jeopardise other business opportunities by telling the truth. In other words, the court noted, she did it for the money.
Remedy
The judge would have been more than happy to throw the debtor back into jail, but he was concerned that this would be of little assistance to the creditor. The judge asked the creditor's lawyer what he wanted. The lawyer replied that he "wants one full, honest, and fair examination of (the debtor)."
The judge therefore ordered, as suggested, that the debtor attend for examination in aid of execution to be held before a Master of the Superior Court. Normally, these examinations are simply held in a reporter's office. The judge hoped, perhaps vainly, that the presence of a judicial officer during the examination might have some small impact on the debtor's attitude towards the truth.
Expectation
The judge's expectation of a full, honest, and fair examination was not high. He noted that he had remain seized of the matter during the various motions that the creditor had to bring. However, this time he stated "at a certain point it is necessary to hand the matter over to a new set of eyes. I believe that time has come. Accordingly, if there is a need for any further court appearance in this case (after the examination in front of the Master as set out above), I will not be seized."
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