The Unchecked Problem of Faulty Findings of Fact at Trial

The justice system in Canada relies heavily on the accuracy of fact-finding by trial courts. Whether it’s a judge or a jury, these fact-finders are tasked with assessing evidence, determining credibility, and ultimately deciding what really happened in a dispute. But the truth is, this system has a glaring and largely unacknowledged flaw: when fact-finders get it wrong, there is almost no way to correct their mistakes. Our belief that fact-finding is inherently accurate is misguided. Equally flawed is the assumption that judges and juries always approach it with the best intentions, as this faith ignores the fact that judges can be biased, and jurors often have motives inconsistent with justice. Faith in a process is no foundation for a defensible judicial system.

We see this issue most clearly in criminal law.DNA exonerations have exposed the system’s fallibility. People convicted of serious crimes, sometimes decades ago, have been proven innocent by evidence that wasn’t available, was misinterpreted or ignored at the time of their trials. These cases demonstrate that wrongful convictions happen, even under the high standard of proof beyond a reasonable doubt. But the problem isn’t limited to cases where DNA evidence exists. Many wrongful convictions have been overturned not because of science, but because witnesses came forward years later to admit they lied or were pressured into giving false testimony. Others were overturned when suppressed evidence finally came to light.

If errors occur under the rigorous criminal standard of proof, the implications for civil cases, where the standard is merely a balance of probabilities, are staggering. In civil trials, the trier of fact must decide whether one version of events is more likely than another. When evidence is disputed, and the testimony of one witness directly contradicts another, the court must choose a side. The likelihood of error in such cases is undeniable, yet we treat these judgments as final, just as we do in criminal cases.

The nature of credibility assessments makes this problem even more troubling. Credibility is subjective. Some people, through mannerisms, speech patterns, or nervousness, may appear less truthful even when they are entirely honest. Others can lie convincingly. Judges and juries, despite their best intentions, are human and susceptible to these appearances. They also bring their own unconscious biases to the process, shaped by their personal backgrounds, experiences, and assumptions.

This issue is compounded in Canada, where most trials are conducted by judges alone. A single individual’s assessment of credibility, demeanour, and evidence becomes the basis for the decision. If that judge misunderstands a key piece of evidence, fails to see through a falsehood, or simply misjudges a witness’s credibility, there is almost no recourse. The deference given to trial judges on findings of fact means that appellate courts will not revisit these errors unless they are so significant that they amount to an error of law. This threshold is almost impossible to meet.

This culture of deference extends throughout the justice system. Appellate courts rely on trial judges to get it right. Judges trust their own instincts and abilities to discern truth from falsehood. Lawyers, bound by professional rules, rarely question the system’s capacity for error. Even when a decision is obviously wrong, the system is designed to protect finality over accuracy. It is a closed loop, and the consequences are profound.

Consider what this means in practical terms. A judge once joked to a small group of lawyers as I stood by that they could make findings of fact to justify almost any outcome. It seemed like a boast, delivered with humour, but it highlighted an uncomfortable truth: the process of fact-finding is not as objective as we like to pretend. Judges, consciously or not, can and do shape findings of fact to fit the outcome they believe is just. Sometimes they get it right, but when they get it wrong, there is no safety net.

The lack of an effective remedy for faulty findings of fact undermines the legitimacy of the system. In criminal cases, it has led to people losing decades of their lives to wrongful convictions. In civil cases, it results in financial ruin, loss of custody of children, or reputational destruction based on judgments that may be fundamentally flawed. The problem isn’t that mistakes are made—that is inevitable in any human system. The problem is that we have no mechanism to correct those mistakes when they happen.

This issue is systemic and structural. It is not about bad faith or incompetence on the part of individual judges or juries. It is about the limitations of human judgment and the refusal of the system to acknowledge those limitations. The deference given to trial courts on matters of fact reflects a deep-seated belief that the process is good enough. But "good enough" is not justice. It is a compromise, and one that we rarely admit to.

We avoid confronting this problem because doing so would challenge the very foundation of the justice system. If fact-finding is unreliable, then every decision based on disputed facts is suspect. Acknowledging this would require us to rethink how we evaluate evidence, how we train judges and lawyers, and how we handle appeals. It would force us to confront the uncomfortable reality that many of the judgments we hold as final may, in fact, be wrong.

The first step to addressing this issue is recognizing that it exists. We know the system gets it wrong. DNA exonerations, late-in-the-day reversals, and cases that fall apart under scrutiny all tell us this. But these are just the errors we can see. How many more remain hidden because the evidence isn’t there to expose them? How many wrongful convictions or unjust civil judgments persist because the system doesn’t allow us to question them?

We are walking around with blinders on, pretending that these flaws don’t exist because acknowledging them would shake our confidence in the system. But confidence built on denial is not real confidence. Until we start to speak about the problem of faulty findings of fact—until we admit that our system completely lacks a method to address them—we are failing to provide justice in its most basic sense. Cases will continue to be wrongly decided and there will be no remedies unless the wronged party is lucky enough to have a legal issue upon which they can succeed on appeal.