Weighing Testimony of the Accused

From Criminal Law Notebook
This page was last substantively updated or reviewed December 2021. (Rev. # 82366)

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.[1]

Purpose of W(D) Framework

The W(D) framework intends to explain "what reasonable doubt means in the context of conflicting testimonial accounts".[2] 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." [3]

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".[4]

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.[5]

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".[6]

  1. ↑ R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J (4:1)
  2. ↑ R v JHS, 2008 SCC 30 (CanLII), [2008] 2 SCR 152, per Binnie J (7:0), at para 9
  3. ↑ R v Van, 2009 SCC 22 (CanLII), [2009] 1 SCR 716, per LeBel J (5:4), at para 23
    W(D), supra, at p. 757
  4. ↑ R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5, per Abella J (4:3), at para 8
  5. ↑ R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J
    R v Smith, 2018 ABQB 199 (CanLII), per Goss J, at para 49
  6. ↑ JHS, supra, at para 13

Sufficiency of Analysis

See also: Sufficiency of Reasons

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".[1]

They do not need to "summarize specific findings on credibility" by giving statements on overall credibility.[2]

It is not necessary that the judge reconcile the positive findings of one witness against the negative findings of a contradictory witness.[3]

  1. ↑ R v REM, 2008 SCC 51 (CanLII), [2008] 3 SCR 3, per McLachlin CJ, at para 64
  2. ↑ REM, ibid., at para 64
  3. ↑ REM, ibid., at para 65

Application

Where the accused and a complainant give contradictory evidence, the judge must apply the test from the case of R v (W)D.[1]

The test in W(D) will primarily only apply to cases where the accused gives evidence.[2] However, the principles of DW will apply in any case where a crucial issue turns on creditability.[3]

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".[4]

In the context of a voir dire, the principles of D.W. do not apply.[5] 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.[6]

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.[7]

  1. ↑ R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J
    R v Fowler, 1993 CanLII 1907 (BC CA), per Toy JA
    R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5, per Abella J (4:3)
    R v McKenzie (P.N.), 1996 CanLII 4976 (SK CA), 141 Sask R 221 (Sask CA), per Tallis JA, at para 4
    R v Rose (A.), 1992 CanLII 987 (BCCA), 20 BCAC 7 (BCCA), per curiam
    R v Currie, 2008 ABCA 374 (CanLII), 446 AR 41, per Côté JA (3:0)
    R v BGS, 2010 SKCA 24 (CanLII), 346 Sask R 150, per Ottenbreit JA (3:0)
  2. ↑ R v Warren, 2011 CanLII 80607 (NL PC), per Gorman J at 24
  3. ↑ R v FEE, 2011 ONCA 783 (CanLII), 282 CCC (3d) 552, per Watt JA (3:0), at para 104
  4. ↑ R v BD, 2011 ONCA 51 (CanLII), 266 CCC (3d) 197, per Blair JA (3:0), at paras 113 to 114
    R v Cyr, 2012 ONCA 919 (CanLII), 294 CCC (3d) 421, per Watt JA (3:0), at para 50
    R v Ryon, 2019 ABCA 36 (CanLII), 371 CCC (3d) 225, per Martin JA
    R v PO, 2021 ABQB 318 (CanLII)(complete citation pending), at para 197
  5. ↑ See R v Kocovic, 2004 ABPC 190 (CanLII), 25 CR (6th) 265, per Semenuk J
  6. ↑ see R v Van, 2009 SCC 22 (CanLII), [2009] 1 SCR 716, per LeBel J (5:4), at paras 20 to 23
  7. ↑ R v MacIsaac, 2017 ONCA 172 (CanLII), 347 CCC (3d) 37, per Trotter JA (3:0)
    R v St Pierre, 2017 ONCA 241 (CanLII), per curiam (3:0)
    R v Turcotte, 2018 SKCA 16 (CanLII), per Schwann JA, at para 14

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.[1]

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".[2] It further intends to make clear that the burden never shifts from the Crown to prove every element of the offence.[3]

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:[4]

  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:[5]

  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:[6]

  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.[7]

It is wrong when considering conflicting evidence of credibility to "weigh" one story over the other.[8] 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.[9] To prefer one testimony over another has the effect of reversing the onus upon the accused.[10]

There is nothing preventing a judge from believing both the complainant and the accused even where they gave divergent or contradictory evidence[11]

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.[12]

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.[13]

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.[14]

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.[15] Equally, an exact recitation does not protect the decision from review where the principles were wrongly applied.[16]

Proposed Reformulation

In Alberta, the test for credibility has been re-written as comprising several stages.[17] At the first stage, it should be made clear that:[18]

  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:[19]

  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".[20]

  1. ↑ R v Newman, 2018 ABPC 143 (CanLII), per Pharo J, at para 18
  2. ↑ R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5, per Abella J (4:3), at para 8
    JHS, supra, at para 9 (to “explain what reasonable doubt means in the context of evaluating conflicting testimonial accounts”)
  3. ↑ JHS, supra, at para 13
  4. ↑ R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J
    R v PNM, 1996 CanLII 4976 (SK CA), 106 CCC (3d) 1, per Tallis JA - frames it as a four step inquiry
    R v Minuskin, 2003 CanLII 11604 (ON CA), 181 CCC (3d) 542, per Rosenberg JA, at p. 550 R v BD, 2011 ONCA 51 (CanLII), 266 CCC (3d) 197, per Blair JA, at paras 102 to 114
    R v Turmel, 2004 BCCA 555 (CanLII), [2004] BCJ No. 2265 (CA), per Newbury JA, at paras 9 to 17
    R v Gray, 2012 ABCA 51 (CanLII), 285 CCC (3d) 539, per Martin JA (3:0), at para 42
    R v Vuradin, 2013 SCC 38 (CanLII), [2013] 2 SCR 639, per Karakatsanis J (5:0), at para 21
    R v Tyers, 2015 BCCA 507 (CanLII), 381 BCAC 46, per Stromberg-Stein JA (3:0), at paras 12, 15
    R v Mann, 2010 BCCA 569 (CanLII), 297 BCAC 234, per Chiasson JA, at para 31
  5. ↑ R v PDB, 2014 NBQB 213 (CanLII), per Ferguson J, at para 67 - this is taking into account the additional formulation from JHS, supra
    R v NM, 2019 NSCA 4 (CanLII), 370 CCC (3d) 143, per Bourgeois JA, at para 23
    R v Wheyee, 2019 ABQB 548 (CanLII), per Horner J, at para 72
  6. ↑ David Paciocco, "Doubt about Doubt: Coping with R. v W.(D.) and Credibility Assessment", (2017) 22 Can. Crim. L. Rev. 31 at para 72
  7. ↑ R v JHS, 2007 NSCA 12 (CanLII), 217 CCC (3d) 52, per Saunders JA - on appeal to SCC
  8. ↑ R v BGS, 2010 SKCA 24 (CanLII), 346 Sask R 150, per Ottenbreit JA (3:0), at para 9
  9. ↑ R v Challice, 1979 CanLII 2969 (ON CA), 45 CCC (2d) 546 (Ont CA), per Morden JA
    R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J
    R v Chan, 1989 ABCA 284 (CanLII), 52 CCC (3d) 184, per curiam
    R v Jaura, 2006 ONCJ 385 (CanLII), [2006] OJ No 4157, per Duncan J, at paras 12, 13
  10. ↑ R v Abdirashid, 2012 ABPC 22 (CanLII), [2012] A.J. No 131, per Bascom J, at para 6
  11. ↑ R v Nadeau, 1984 CanLII 28 (SCC), [1984] 2 SCR 570, per Lamer J
  12. ↑ Canadian Criminal Evidence, Second Edition, by P.R. McWilliams, Q.C., at page 652
    R v Nykiforuk, 1946 CanLII 202 (SK CA), 86 CCC 151, per MacKenzie JA
  13. ↑ R v JAH, 2012 NSCA 121 (CanLII), NSJ No 644, per Bryson JA, at para 7
    R v NM, 2019 NSCA 4 (CanLII), 370 CCC (3d) 143, per Bourgeois JA, at para 25
    R v Coburn, 2021 NSCA 1 at para 27(complete citation pending)
  14. ↑ NM, ibid., at para 25
  15. ↑ W(D), supra, at p. 758 [SCR]
    JHS, supra, at para 14
    R v Vuradin, 2013 SCC 38 (CanLII), [2013] 2 SCR 639, per Karakatsanis J (5:0), at para 26
  16. ↑ R v JP, 2014 NSCA 29 (CanLII), 342 NSR (2d) 324, per Beveridge JA, at paras 62 to 64, 73, 85
  17. ↑ R v Ryon, 2019 ABCA 36 (CanLII), 371 CCC (3d) 225, per Martin JA (3:0)
  18. ↑ Ryon, ibid., at para 49
  19. ↑ Ryon, ibid., at para 51
  20. ↑ Ryon, ibid., at para 52

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.[1]

The first two steps in the W(D) test require the "weighing [of] the accused's evidence together with the conflicting Crown evidence."[2]

While it was not specifically stated in the original formulation of the DW test. The judge must analyze the first step in the context of the evidence as a whole".[3]

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. [4]

  1. ↑ R v Berg, 2016 SKPC 55 (CanLII), per Kovatch J - commentary by Kovatch PCJ
  2. ↑ R v Humphrey, 2011 ONSC 3024 (CanLII), [2011] O.J. No. 2412 (Sup. Ct.), per Code J, at para 152
    see also R v Newton, 2006 CanLII 7733 (ON CA), per curiam (3:0), at para 5
    R v Hull, 2006 CanLII 26572 (ON CA), 70 WCB (2d) 274, per curiam (3:0), at para 5
    R v Snider, 2006 ONCJ 65 (CanLII), [2006] O.J. 879, per MacDonnell J, at para 37
    R v Hoohing, 2007 ONCA 577 (CanLII), 74 WCB (2d) 676, per Feldman JA, at para 15
  3. ↑ R v Newman, 2018 ABPC 143 (CanLII), per Pharo J, at para 18 ("Although the phrase “in context of the evidence as a whole” is not repeated in the first step of the formula instructions, it should be read into those instructions.")
  4. ↑ R v Lake, 2005 NSCA 162 (CanLII), NSJ No. 506, per Fichaud JA (3:0)

First Step: Whether to Reject the Accused's Evidence

The accused's evidence should be the evidence considered first.[1]

The accused's evidence can be rejected on the basis of:[2]

  • 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."[3]

However, where the judge fails to give reasons and the "road to conviction is nonetheless clear" the omission will not be fatal.[4]

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. [5] 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.[6]

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."[7]

It is certainly permissible however to reject the accused's evidence on the basis that when "stacked beside" all the other evidence.[8]

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. [9] 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. [10]

Impugning the accused's credibility is a permissible form of post-offence conduct.[11]

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.[12] 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.[13]

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.[14]

Effect of Rejection of Evidence

The rejection of the accused's evidence does not amount to evidence in favour of the Crown.[15]

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.[16] Disbelieving the accused because of their self-interest to be acquitted is a reversible error.[17]

The disbelief of the accused evidence cannot be used as "positive proof of guilt by moving directly from disbelief to a finding of guilt."[18]

It is an error of law to infer guilt merely from the fact that the accused's evidence has been disbelieved.[19]

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.[20]

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.[21]

  1. ↑ R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5, per Abella J (4:3)
  2. ↑ e.g. R v Burton, 2017 NSSC 57 (CanLII), per Arnold J, at para 216
  3. ↑ R v Lake, 2005 NSCA 162 (CanLII), 203 CCC (3d) 316, per Fichaud JA (3:0), at para 14 - however an implied conclusion is sufficient, see para 17
    R v Maharaj, 2004 CanLII 39045 (ON CA), 186 CCC (3d) 247, per Laskin JA (3:0)
  4. ↑ R v Stamp, 2007 ABCA 140 (CanLII), 219 CCC (3d) 471, per Berger JA, at para 25
    R v CJJ, 2018 ABCA 7 (CanLII), 358 CCC (3d) 163, per curiam, at para 35
  5. ↑ Lake, supra, at para 21
  6. ↑ R v YM, 2004 CanLII 39045 (ON CA), 186 CCC (3d) 247, per Laskin JA (3:0), at para 30
  7. ↑ R v Surana, 2013 ABPC 164 (CanLII), per Allen J, at para 78
  8. ↑ R v TS, 2012 ONCA 289 (CanLII), 284 CCC (3d) 394, per Watt JA, at para 79 ("…as a matter of law, reasoned acceptance of a complainant’s evidence is a basis upon which a trial judge can reject the evidence of an accused and find guilt proven beyond a reasonable doubt. A reasoned and considered acceptance of the complainant evidence is as much as explanation for rejecting the contrary evidence of an accused as are problems inherent in an accused’s own testimony.")
  9. ↑ R v JJRD, 2006 CanLII 40088 (ON CA), 215 CCC (3d) 252, per Doherty JA, at para 53 ("An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.")
  10. ↑ R v DP, 2017 ONCA 263 (CanLII), per curiam (3:0), at paras 23 to 25
  11. ↑ R v Jaw, 2009 SCC 42 (CanLII), [2009] 3 SCR 26, per LeBel J (7:2), at para 39
    R v White, 1998 CanLII 789 (SCC), [1998] 2 SCR 72, per Major J (7:0), at para 26
  12. ↑ R v CL, 2020 ONCA 258 (CanLII), OJ No 1669, per Paciocco JA, at para 30 ("In such a case a trier of fact may appropriately find that the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt. There may be exceptional cases where it is appropriate for a trial judge to explain this avenue of conviction to the jury.")
    R v OM, 2014 ONCA 503 (CanLII), 313 CCC (3d) 5, per Cronk JA, at para 40
    R v JJRD, 2006 CanLII 40088 (ON CA), 215 CCC (3d) 252, per Doherty JA, at para 53 ("...The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.")
  13. ↑ R v MHL, 2021 NSCA 74 (CanLII), per Beaton JA, at paras 33 to 34
    see also JJRD, supra, at para 53
  14. ↑ R v Gordon, 2012 ONCA 533 (CanLII), [2012] O.J. No. 4059 (ONCA), per curiam, at para 6 ("Crown counsel…seemed to invite the jury at one point in his closing to draw an inference against the appellant's credibility because the appellant had the benefit of full disclosure and hearing the Crown's case before testifying. At the outset of his charge to the jury, the trial judge emphatically advised the jury that no such inference could be drawn.")
  15. ↑ R v Nedelcu, 2012 SCC 59 (CanLII), [2012] 3 SCR 311, per Moldaver J (6:3) (“rejection of an accused’s testimony does not create evidence for the Crown”)
  16. ↑ R v Drescher, 2010 ABQB 94 (CanLII), 488 AR 341, per Lee J, at para 30
    R v Murray, 1997 CanLII 1090 (ON CA), 115 CCC (3d) 225, per Charron JA (3:0)
    R v BG (2000), O.J. No. 1347 (Ont. C.A.)(*no CanLII links)
    R v Masse, 2000 CanLII 5755 (ON CA), O.J. No. 2687 (Ont. C.A.), per curiam
    R v MJ, 2002 CanLII 49364 (ON CA), OJ No 1211 (Ont. CA), per curiam (3:0)
  17. ↑ R v LB, 1993 CanLII 8508 (ON CA), 82 CCC (3d) 189, per Arbour JA (3:0)
  18. ↑ R v MQ, 2010 ONSC 61 (CanLII), OJ No 378, per Hill J
  19. ↑ R v To, 1992 CanLII 913 (BCCA), , 16 B.C.A.C. 223, per McEachern JA (3:0), at paras 24, 28
    R v Moore, 2005 BCCA 85 (CanLII), per Rowles JA (3:0)
    R v Levy, 1991 CanLII 2726 (ON CA), 62 CCC (3d) 97, per Doherty JA at 101
  20. ↑ R v JCH, 2011 NLCA 8 (CanLII), 267 CCC (3d) 166, per Rowe JA (3:0) , at para 18
  21. ↑ R v JM, 2021 ONCA 150 (CanLII), per Brown JA, at paras 49 to 50

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.[1]

The importance of this step is to avoid the risk of a binary view of credibility analysis, which would be an error of law.[2] The trier may have a "total acceptance, total rejection, or something in between".[3] 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"[4] 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.[5]

This step can also be addressed by acquitting if the judge "cannot decide whether the evidence inconsistent with guilt is true".[6]

  1. ↑ See WD, supra
  2. ↑ WD, supra
  3. ↑ R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J (6:0), at p. 357 (SCR)
    R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ (7:0)
  4. ↑ R v Graham, 2021 BCCA 163 (CanLII), at para 24
    R v Roberts, 1975 CanLII 1394 (BC CA), 24 CCC (2d) 539, per Carrothers JA at 550 (cited with approval in WD)
  5. ↑ R v Murray, 2020 BCCA 42 (CanLII) at para. 54
  6. ↑ Graham, supra, at para 27

Third Step

The court simply rejecting the accused story is not enough. [1] 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." [2]

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"[3]

It is an error of law to use the disbelief of the accused's evidence as proof of guilt.[4]

  1. ↑ R v BCG, 2010 MBCA 88 (CanLII), [2010] MJ No. 290, per Chartier JA (3:0) (“reasonable doubt is not forgotten” simply because a trial judge rejects “the accused’s version of events.”)
    R v Liberatore, 2010 NSCA 82 (CanLII), [2010] NSJ No. 556, per Hamilton JA (3:0), at 15 stated W(D) prevents “a trier of fact from treating the standard of proof as a simple credibility contest”
  2. ↑ R v Gray, 2012 ABCA 51 (CanLII), 285 CCC (3d) 539, per Martin JA (3:0), at para 40
  3. ↑ R v Dore, 2004 CanLII 32078 (ON CA), 189 CCC (3d) 526, per curiam (3:0), at p. 527
    R v SH, 2001 CanLII 24109 (ON CA), OJ No 118 (CA), per curiam (3:0), at paras 4 to 6
  4. ↑ Dore, supra, at p. 527
    SH, supra, at paras 4 to 6

"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".[1]

A judge cannot take into account roadside statements in the assessment of the accused's credibility.[2]

  1. ↑ R v CWH, 1991 CanLII 3956 , 68 CCC (3d) 146, per Wood JA (3:0)
    R v PNM, 1996 CanLII 4976 (SKCA), 106 CCC (3d) 1, per Tallis JA
  2. ↑ R v Huff, [2000] O.J. No. 3487(*no CanLII links) leave to appeal to SCC denied [2000] SCCA No 562

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.[1] But this approach has had some critics.[2]

A judge may reject the accused evidence on the sole basis that it contradicts the accepted evidence.[3]

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.[4]

It should also be acknowledged that a general denial will "necessarily be lacking in detail" and should be considered in that context.[5]

  1. ↑ R v Moose, 2004 MBCA 176 (CanLII), 190 CCC (3d) 521, per Huband JA (3:0), at para 20
  2. ↑ R v DAM2010 NBQB 80(*no CanLII links) , at paras 53 and 56
    R v Schauman, 2006 ONCJ 304 (CanLII), OJ No 3425, per Fairgrieve J, at para 6
    R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5, per Abella J (4:3)
    R v Currie, 2008 ABCA 374 (CanLII), [2008] AJ No 1212, per Côté JA (3:0)
  3. ↑ R v JJRD, 2006 CanLII 40088 (ON CA), 215 CCC (3d) 252, per Doherty JA, at para 53
    R v REM, 2008 SCC 51 (CanLII), [2008] 3 SCR 3, per McLachlin CJ (7:0), at para 66
    R v Thomas, 2012 ONSC 6653 (CanLII), OJ No 5692, per Code J, at para 26
  4. ↑ R v Surana, 2013 ABPC 164 (CanLII), per Allen J, at para 71
  5. ↑ R v Freamo, 2021 ONCA 223 (CanLII), per curiam, at paras 9to 10
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