Where there is conflicting testimony in a criminal trial involving the credibility of the accused, the four part test outlined in R. v. W.(D.), [1991] 1 S.C.R. 742 and R. v. C.W.H. [1991] B.C.J. No. 2753 (BCCA) applies:

1. If the trier of fact believes the evidence of the accused, they must acquit;
2. If the trier of fact does not believe the evidence of the accused, but is left in reasonable doubt by it, they must acquit;
3. Even if not left in doubt by the evidence of the accused, the trier of fact must ask itself whether, based on the evidence that they do accept, whether they are convinced beyond a reasonable doubt of the guilt of the accused; and
4. If after careful consideration of the evidence, the trier of fact is unable decide who to believe, they must acquit.

This four part test ought not be applied like a statute.  What is important are the principles underpinning the W.(D). analysis.  Justice Paciocco of the Ontario Court of Appeal described these principles in an article as follows:

1. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;
2. A criminal fact finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;
3. Even if a criminal fact finder does not entirely believe evidence consistent with guilt, if the fact finder cannot decide whether that evidence is true, there is a reasonable doubt and an acquittal must follow;
4. Even where the fact finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
5. Even where the fact finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt: v. B.W.M. 2020 BCSC 990 at para 15.

Verdicts of guilt “should not be based on ‘whether [triers of fact] believe the defence evidence or the Crown’s evidence’…. Rather, the paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused”: R. v. C.L.Y. 2008 SCC 2 at para 6, quoting W.(D.) at p 757 and citing R. v. Morin, [1988] S.C.R. 345 at p. 361.  “The verdict should not be based on a choice between the accused and Crown’s evidence, but whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt”:  C.L.Y., at para 8.

Cases involving assessments of credibility when there are two competing versions of events are challenging for the trier of fact.  Often this issue arises in the context of sexual assault trials when a complainant testifies about an unconsented sexual encounter, which is then denied by the accused.  In other words, a ‘he said v. she said’ scenario.  It is respectfully submitted that this Court must understand how the principle of reasonable doubt is to be applied to the credibility assessment.  There is a distinction between a finding of credibility and proof beyond a reasonable doubt.  In other words, a reasonable doubt can survive a finding that the complainant is credible:  R. v. J.W. 2014 ONCA 322 at para 26, quoting R. v. J.J.R.D (2006), 215 C.C.C. (3d) 252 at para 47.

Should you be facing a criminal allegation, and considering giving evidence at trial, our Team at La Liberté Cronin & Company are intimately familiar with the caselaw and challenges the Court will have in its assessment of this evidence.  We are standing by ready to give you the advice needed to navigate all the challenges the trial may present.

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