Appeal Court addresses ‘fanciful and utterly unbelievable’ testimony

By John L. Hill

Law360 Canada (April 6, 2023, 12:33 PM EDT) --
John Hill
John L. Hill
If the object of a trial is to find the truth, one shouldn’t let a technical argument get in the way. Elkena Michael Knauff found out that the British Columbia Court of Appeal was less than convinced that a technical challenge to a trial judge’s finding of his lack of credibility would allow the accused a new trial (R. v. Knauff 2023 BCCA 107).

According to Knauff, he and his co-accused, Cheryl Aeichele, were simply trying to park the pickup truck she was driving at a spot far from the front entrance when two men approached the car and one of the men threw a plastic baggie containing cocaine into Knauff’s lap saying police were coming. Surprised, Knauff stuffed the packet into his pocket. He was surprised to learn that when police searched the truck, drugs and drug-related items were found in the driver’s doorjamb and in a brown purse in the centre console. They also found walkie-talkies, a safe containing drugs similar in packaging to the drugs found to be carried by Knauff and cash.

According to police, this incident bore all the hallmarks of a dial-a-dope operation. Police had been watching two known drug users for a period of time and observed them running toward the pickup truck as it drove into a remote portion of a Penticton Walmart parking lot. Police suspected a drug deal was about to go down. As police approached, the two men ran off. It was only when a packet of drugs remained near the passenger-side truck door that police investigated further. Although both Knauff and Aeichele denied any knowledge of the drugs discovered, both were charged with three counts of possession for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act. Both were convicted at trial in 2020 (R. v. Aeichele 2020 BCSC 2300). Knauff appealed.

It was admitted that the trial judge was alive to the correct mode of assessing witness testimony. His reasons included reference to R. v. W. (D.) [D.W.] [1991] 1 S.C.R. 742 in assessing both Knauff’s and Aeichele’s credibility. He just didn’t believe either of them.

Although judges’ assessments of credibility are ordinarily given deference on appeal, Knauff argued that no deference should be given when the judge errs in law and employs conjecture to explain why Aeichele would not have parked closer, why a complete stranger would approach Knauff, and why that stranger would drop a baggie on Knauff’s lap. This, according to Knauff, is not the way trial judges should determine credibility and amounts to error in law and, thus, a new trial should be ordered. Knauff’s counsel cited R. v. J.M.H. 2011 SCC 45 and R. v. A.M. 2014 ONCA 769 as authority that an accused is entitled to have his evidence assessed on a correct legal basis.

The Court of Appeal admitted the trial judge did not express himself with perfect clarity or accuracy. But when the reasons are read as a whole instead of focusing in on a few details, it became evident that Knauff’s account was “fanciful and utterly unbelievable.” Yet, as the court had earlier explained in R. v. Kruk, 2022 BCCA 18, trial reasons are intended to explain what a judge decided and why the judge made the decision. Here there were ample grounds to find that Knauff was untruthful in giving evidence. Looking at Knauff’s testimony, the court both at the trial and the appeal level found his testimony to be “utterly implausible, [and] irrational.”

The Appeal Court also observed that Knauff’s demeanor on the witness stand pointed up one who may be less than truthful. He fidgeted while giving evidence, rubbed his face and hair, and spoke extremely fast.

The Court of Appeal could find no error in the path of reasoning in the trial judge’s credibility assessment.

This judgment reinforces the notion that even when an appeal court discerns imperfections in a trial judge’s reasons, it does not preclude the court from assessing what it sees as the truth. As a result, Knauff’s appeal was dismissed.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

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