DON'T JUDGE WITNESS CREDIBILITY BY APPEARANCE ALONE

Credibility is everything in a trial and a B.C. Supreme Court justice
has asked lawyers to consider the idea that it boils down only to
what is said and how.

Forget about the rolling eyes, the facial tics or the sweaty brow.

"I've done a lot of assessing of witnesses in my day," Justice Marvyn
Koenigsberg said, "most of it comes from listening to an exchange."

The veteran jurist, who also teaches law students and professionals
how to assess witnesses, said that flinches or visual information can
often be misleading if not accompanied by something that's said.

As a result, she's asked lawyers to consider a high-tech solution to
salvage something from the enormous expense and time invested in a
key constitutional challenge to the marijuana law.

The justice who was conducting the Victoria trial died a few weeks
ago and normally that means a mistrial and everyone starts from square one.

But Koenigsberg says the expense incurred by the defendants and the
four years spent getting this far should not be thrown away.

On the cusp of retirement, she agreed to remain on the bench to deal
with the handful of cases the late Justice Robert Edwards left
unfinished. This case, she said, was the most important.

Prosecution and defence lawyers were concerned that the Criminal Code
and legal precedent suggested a new judge cannot take over a trial by
simply reading transcripts because questions of credibility turn on a
witness's demeanour or the tone of his or her testimony.

They expected to begin anew.

But Justice Koenigsberg says digital audio recording systems
installed in the Supreme Court allow her to determine credibility by
listening to the roughly 30 days of trial so far and all may not be lost.

"I can't see, but I can listen," Justice Koenigsberg said, and that
is more important in determining a credibility, she added.

Visual ticks and how a witness looks have minimal impact on how a
judge determines whether to believe a witness, she said.

Justice Koenigsberg said it was more important to listen to tone of
voice and inflection.

She said last week she listened to some of the trial, which is
available to her via a simple Internet connection.

"It's very clear," Koenigsberg told the surprised lawyers Friday at a
special hearing to decide what should happen in the case.

"I've ordered you all copies and before we make any decisions, I'm
going to ask you to listen to the tapes.... I think it's a very
viable substitute for the question of credibility."

Defence lawyers John Conroy and Kirk Tousaw were pleased because not
only will that save their clients money, but at the same time the
Crown also agreed to drop charges against Michael Swallow.

The 41-year-old and Mat Beren, 32, were both charged with producing
and possessing marijuana for the purpose of trafficking in May 2004
after the RCMP raided a Sooke house used by the Vancouver Island
Compassion Society. The club provides cannabis products and other
health services to roughly 600 members.

Swallow was only visiting at the time of the raid and Crown attorney
Peter Eccles said that given the evidence presented at the trial, it
was not appropriate to force him to go through the ordeal again.

Tousaw and Conroy have been arguing the criminal law is
constitutionally invalid because the federal government has failed to
provide adequate access and supply of medical marijuana as required
under rulings by the Supreme Court of Canada.

Ill people should not be forced to go to the black market for
medication and the criminal prohibition against marijuana can be
constitutionally supported only if Ottawa provides an adequate
medical program, according to the high bench.

Tousaw and Conroy say the current program doesn't work.

Health Canada now has three legal ways for the sick to obtain marijuana:

They can obtain a permit to grow it themselves, they can get
permission to have a designated grower produce it for them, or they
can buy it from the government, which gets it from a company growing
the plants at an former Manitoba mine property.

But there are widespread complaints from patients that obtaining and
maintaining the necessary permits from Ottawa is an interminably
clotted bureaucratic process.

As well, many say the federal pot isn't very good and they either
need better-quality dope or a different strain.

They say the current situation forces them to support organized crime
and buy the medicine they need from street dealers.

A study was presented to the court that indicated most patients using
marijuana buy it from illicit sources.

Thousands across the country, however, have turned to compassion
clubs such as the VICS that provide a variety of better-quality
cannabis products, as well as the dried herb.

That's why this case is so important -- and why a who's who have
testified, including Conservative Senator Pierre Claude Nolin, who
led the 2002 parliamentary review of drug policy that concluded
cannabis should be legalized.

Two recent Ontario court judgments also have focused attention on this case.

A judge in Oshawa threw out possession charges against three young
men on Oct. 19, citing the earlier decision that Ottawa should have
passed a new law in response to the court decisions. The criminal law
is unconstitutional, the judge said, because it does not accommodate
legal medical use.

At the same time, the Conservative government is pushing to stiffen
criminal penalties for cannabis offences as part of its vaunted
law-and-order legislative package.

Still, Crown attorney Peter Eccles was taken aback by the justice's
novel solution to the predicament, and not thrilled.

He doesn't like a lot of the testimony from ill people who are being
helped by marijuana because they represent a sympathy card. He had
hoped to argue at the end of the trial that much of what they had to
say should be ignored as irrelevant.

Justice Koenigsberg said he could still do that, and she'd give him
leeway to recall witnesses and revisit issues, all in the interests
of moving forward.

"The cost to the parties is what's important at this point," she emphasized.

Justice Koenigsberg said she had ordered digital discs containing the
recordings of the trial for each side.

"Let me know if you still think credibility cannot be assessed by
listening to the tapes and using the transcript," she said.

"I'll be asking you to articulate why that won't do."

The lawyers and the justice confer again Tuesday.