Weighing Testimony of the Accused

This page was last substantively updated or reviewed December 2021. (Rev. # 96446)

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General Principles

When an accused testifies and their credibility is at issue, the trial judge must apply what is known as the "WD test" to determine what weight to put on their evidence.

Purpose of W(D) Framework

The W(D) framework intends to explain "what reasonable doubt means in the context of conflicting testimonial accounts." The W(D) test is to "ensure that the jury know how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, and that they do not have to accept the defence evidence in full in order to acquit."

The purpose of the test is not "based on a choice between the accused's and the Crown's evidence, but on whether, based on the whole of the evidence, [the trier-of-fact] is left with a reasonable doubt."

When the W(D) Test Applies

The W(D) analysis is only necessary where credibility is a central or significant issue, usually between the accused and a complainant or eye-witness, and often where there is no significant extrinsic evidence.

Rule Against Shifting Burden

At no time should the trier-of-fact ever shift the burden "from the Crown to prove every element of the offence beyond a reasonable doubt."

Sufficiency of Analysis

A judge does not need to discuss all the evidence of the accused on a given point. They must only show that they recognized credibility was a live issue and "grappled with the substance of the live issue".

They do not need to "summarize specific findings on credibility" by giving statements on overall credibility.

It is not necessary that the judge reconcile the positive findings of one witness against the negative findings of a contradictory witness.

The W(D) questions are not supposed to be treated with a "level of sanctity or immutable perfection."

Application

Where the accused and a complainant give contradictory evidence, the judge must apply the test from the case of R v (W)D.

The test in W(D) will primarily only apply to cases where the accused gives evidence. However, the principles of DW will apply in any case where a crucial issue turns on creditability.

The W(D) steps apply not only to the accused's testimony but also to any other exculpatory evidence that emerges during a trial that relates to a "vital issue."

In the context of a voir dire, the principles of D.W. do not apply. Guilt or innocence is not at issue and the standard of proof is one of reasonable doubt, thus an accused will be considered in the same manner as any other witness. Thus if the accused's version conflicts with a police officer, for example, then the court must determine who is telling the truth. If the court cannot decide who is telling the truth then the applicant must fail.

Where the accused and another witness testifies for the defence, the W(D) test is applied differently.

Rejection of Evidence Not Evidence of Guilt

A trial judge cannot infer guilt from the fact that the accused's evidence is not worthy of belief. This inference is only permitted where there is independent evidence of fabrication or concoction.

The "W(D)" Test

The proper analysis of testimony is designed to ensure that Judges do not engage in any weighing of competing versions of events in the absence of consideration of the presumption of innocence or reasonable doubt.

Purpose of W(D) Test

The purpose of the W(D) test is to ensure that the triers of fact "understand that the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt". It further intends to make clear that the burden never shifts from the Crown to prove every element of the offence.

Formulations of the W(D) Test

Where the defence calls the accused to give evidence that contradicts the crown evidence, the trier of fact must determine:

1. If you believe the evidence of the accused, obviously you must acquit.
2. If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
3. Even if you are not left in reasonable doubt by the evidence of the Accused you must ask yourself whether on the basis of the evidence which you do accept you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 

A more recent formulation with four steps suggests the following:

1. if you believe the evidence of the accused, obviously you must acquit;
2. if you do not know whether to believe the accused or a competing witness, you must acquit;
3. if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and
4. even if you are not left in doubt by the evidence of the accused, that is that his or her evidence is rejected, you must ask yourself whether on the basis of the evidence that you accept you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.

Yet another version of the test was phrased as follows:

1. If you accept as accurate evidence that cannot co-exist with a finding that the accused is guilty, obviously you must acquit;
2. If you are left unsure whether evidence that cannot co-exist with a finding that the accused is guilty is accurate, then you have not rejected it entirely and you must acquit;
3. You should not treat mere disbelief of evidence that has been offered by the accused to show his innocence as proof of the guilt of the accused; and
4. Even where evidence inconsistent with the guilt of the accused is rejected in its entirety, the accused should not be convicted unless the evidence that is given credit proves the accused to be guilty beyond a reasonable doubt.

Application of the W(D) Test

The order of the steps is not significant but the steps must all be applied separately.

It is wrong when considering conflicting evidence of credibility to "weigh" one story over the other. The trier of fact cannot "prefer" one story over the other or consider who is "most" credible. The “either/or” approach, preferring one over the other should be avoided. To prefer one testimony over another has the effect of reversing the onus upon the accused.

There is nothing preventing a judge from believing both the complainant and the accused even where they gave divergent or contradictory evidence

The real issue is not who is telling the truth, but instead, whether, on the entirety of the evidence, the crown has proven the case beyond a reasonable doubt.

Standard of Appellate Review

Any error in applying the W(D) test must be reviewed as a question of law on a standard of correctness.

In reviewing the reasons given in W(D) analysis, the appellate judge should not "cherry-pick" parts of the reasons but rather look at them as a whole.

Mis-statement of the Test

A mere failure to use the exact words of the W(D) test before a judge or jury is not fatal. Equally, an exact recitation does not protect the decision from review where the principles were wrongly applied.

Proposed Reformulation

In Alberta, the test for credibility has been re-written as comprising several stages. At the first stage, it should be made clear that:

1. the [credibility] instruction applies only to exculpatory evidence, that is, to evidence that either negates an element of the offence or establishes a defence (other than a reverse onus defence);
2. it applies to exculpatory evidence whether presented by the Crown or the accused.

At the second stage analysis should be as follows:

1. The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to the caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent of the defence.)
2. In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such as an objective component ...).
3. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit.
4. Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.

Finally, it must be understood that where there are multiple charges, it must be understood that "reasonable doubt with regard to one offence will not necessarily entitle the accused to an acquittal on all charges."

Looking at Evidence as a Whole

The steps of W(D) are not considered "watertight" compartments. The analysis at each step should take into account the evidence as a whole. It is essential that the court not look at any witnesses' evidence in a vacuum and instead look at it in relation to all the evidence presented "as a whole".

The first two steps in the W(D) test require the "weighing [of] the accused's evidence together with the conflicting Crown evidence."

First Step: Whether to Reject the Accused's Evidence

The accused's evidence should be the evidence considered first.

The accused's evidence can be rejected on the basis of:

• implausible claims:
  • conclusory statements without basis;
  • inconsistent or implausible observation, memory and recollection;
• internally inconsistent;
• contradicted by other reliable evidence;
• contrived:
  • tailored to defeat the complainant's allegations;
  • shows effort to avoid culpability.

Obligation to Give Reasons

It is necessary that in any case that turns on the accused's credibility, the judge's reasons "should disclose whether she believes or disbelieves the accused."

However, where the judge fails to give reasons and the "road to conviction is nonetheless clear" the omission will not be fatal.

When in Conflict with the Complainant's Evidence

It is crucial that the judge not discount the accused's evidence for the reason that the complainant is believed. Otherwise, the defence is completely neutered before even testifying. Simply rejecting the accused's evidence on the basis that it conflicts with the complainant's evidence which has been accepted without explanation shifts the burden of proof unconstitutionally.

There is some support to suggest that "trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant's evidence."

It is certainly permissible however to reject the accused's evidence on the basis that when "stacked beside" all the other evidence.

In explaining the reason for rejecting the accused's evidence it can be sufficient to justify it based on the reasoned acceptance beyond a reasonable doubt of a fact that conflicts with the evidence rejected. This means that The accused evidence can be rejected on the sole basis that it conflicts with other evidence that is accepted beyond a reasonable doubt.

Impugning the accused's credibility is a permissible form of post-offence conduct.

Rejection Where No Obvious Flaw in Exculpatory Testimony

A trier-of-fact may reject the accused's evidence even if there are no obvious flaws in the testimony where the Crown mounts a strong prosecution. Where the judge makes a "considered and reasoned acceptance" of the evidence conflicting with the accused's evidence, it is sufficient to reject the otherwise flawless defence evidence.

The accused is not entitled to an acquittal simply because his evidence did not have any obvious problems or flaws. The absence of any flaws in the accused's denial the trial judge may still reject the evidence when considered context of the evidence as a whole.

Accused's Access to Disclosure

It is impermissible to use the fact that the accused had access to their disclosure as a reason to discount their testimony.

Effect of Rejection of Evidence

The rejection of the accused's evidence does not amount to evidence in favour of the Crown.

A trial judge's observations that the accused testimony was "self-serving" can lead to the appearance that the judge suspects the accused testimony was inherently unreliable since it would be advantageous for him to misrepresent events in order to acquit himself. Disbelieving the accused because of their self-interest to be acquitted is a reversible error.

The disbelief of the accused evidence cannot be used as "positive proof of guilt by moving directly from disbelief to a finding of guilt."

It is an error of law to infer guilt merely from the fact that the accused's evidence has been disbelieved.

Accused Has No Burden to Explain the Allegations

It is not permissible to reject the accused's evidence due to the fact that the accused was unable to explain why the accuser would have made allegations against him.

Application of Personal Experience

The judge cannot apply their own specific personal experience, as a form of judicial notice, to make determinations of credibility against the accused.

Second Step

The second step in W(D) requires that the trier-of-fact consider, after deciding not to believe the evidence of the accused, whether they "are left in reasonable doubt" by the accused's evidence.

The importance of this step is to avoid the risk of a binary view of credibility analysis, which would be an error of law. The trier may have a "total acceptance, total rejection, or something in between." This means that where there is not a "total acceptance" the trier must consider whether any part of the accused evidence creates doubt on an essential element of the offence.

It is important to remember that this step does not ask whether the evidence is "possibly true". The step only considers whether the evidence creates a "reasonable possibility of innocence" or that the evidence "might reasonably be true" The phrase "might reasonably be true" must be used with caution and applies mostly to instances relating to the doctrine of recent possession. Its use poses the risk of unintentionally reversing the burden proof.

This step can also be addressed by acquitting if the judge "cannot decide whether the evidence inconsistent with guilt is true."

Third Step

The court simply rejecting the accused story is not enough. The purpose of the third part of the test is to convey that "a complete rejection of the [accused's] evidence does not mean that his guilt is established."

It is an error to "use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt"

It is an error of law to use the disbelief of the accused's evidence as proof of guilt.

"Fourth" Step

Several Courts of Appeal recommend an additional element to the D.W. test after the first step directing the judge that "If after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit."

A judge cannot take into account roadside statements in the assessment of the accused's credibility.

Other Considerations

It has sometimes been suggested that the proper approach should be to consider the accused's evidence first before looking at the complainant's evidence in order to avoid creating a burden upon the accused. But this approach has had some critics.

A judge may reject the accused evidence on the sole basis that it contradicts the accepted evidence.

Blanket Denials

An accused's testimony which merely denies the offence and provides no further detail cannot be the basis to dismiss the testimony as unworthy of belief.

It should also be acknowledged that a general denial will "necessarily be lacking in detail" and should be considered in that context.