FAQ's Cases - Stewart McKelvey

and heard, as well as other factors, combine to produce what is called credibility… A witness by his manner may create a very unfavourable impression of histruthfulness upon the trial Judge, and yet the surrounding circumstances in thecase may point decisively to the conclusion that he is actually telling the truth. Iam not referring to the comparatively infrequent cases in which a witness iscaught in a clumsy lie.The credibility of interested witnesses, particularly in cases of conflict ofevidence, cannot be gauged solely by the test of whether the personaldemeanour of the particular witness carried conviction of the truth. The testmust reasonably subject his story to an examination of its consistency with theprobabilities that surround the currently existing conditions. In short, the realtest of the truth of the story of a witness in such a case must be its harmony withthe preponderance of the probabilities which a practical and informed personwould readily recognize as reasonable in that place and in those conditions.In that regard, there are a number of difficulties with many aspects of theevidence provided by Mr. Keen during the hearing. For one thing, the Grievor testifiedthat he could not really remember what was said after the point at which Mr. Mutterstopped talking in the meeting on August 20 and Mr. Birch began his explanations. Onthat basis alone, the reliability of his evidence is compromised. Moreover, on verycritical points, his evidence is at odds with the three other people who were in the roomon August 20. Even with respect to where they were physically situated in Mr. Mutter’soffice, Mr. Mutter, Mr. Wallace and Mr. Birch all were adamant that Mr. Keen wasseated right beside Mr. Birch and that at one point Mr. Mutter had even asked him to sitback down. On the other hand, the Grievor stated he was ten feet away, which wasphysically impossible given the size of the office.As well, the areas where the Grievor’s testimony differs most dramatically relateto such critical issues as where he was sitting, whether he shook his finger and whetherhe included the word “already” in his statement. On more benign matters, the Grievor’sevidence does not differ significantly from that of the others. It is on every key fact thatpoints to his remark being a threat that the Grievor disagrees with the evidence of theother three individuals. The inevitable conclusion from this is that Mr. Keen was tailoringhis evidence in a self-serving way in an attempt to minimize the possibility that hiscomment could be characterized as a death threat.A final point related to credibility is that, while giving evidence, Mr. Keen madecertain statements and then would back off them when pressed. As an example, heinitially asserted that when he was talking with Mr. Wallace on Monday evening he had2011 CanLII 85129 (BC LA)12