Criminal Law Notebook

Weighing Testimony of the Accused

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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.[1]

Purpose of WD Framework

The WD framework intends to explain "what reasonable doubt means in the context of conflicting testimonial accounts".[2] The WD 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 it DW Test Applies

The DW 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), per Binnie J (7:0), at para 9
  3. ↑ R v Van, 2009 SCC 22 (CanLII), 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), per Bastarache J
    R v Smith, 2018 ABQB 199 (CanLII), per Goss J, at para 49
  6. ↑ JHS, supra, at para 13

Application

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

The test in WD 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 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 independence 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 (BCCA), 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), (1996), 141 Sask. R. 221 (Sask. C.A.), per Tallis JA, at para 4
    R v Rose (A.) (1992), 20 BCAC 7 (BCCA), 1992 CanLII 987 (BC CA), per curiam
    R v Currie, 2008 ABCA 374 (CanLII), per Côté JA (3:0)
    R v BGS, 2010 SKCA 24 (CanLII), 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), per Watt JA (3:0), at para 104
  4. ↑ R v BD, 2011 ONCA 51 (CanLII), per Blair JA (3:0), at paras 113-114
    R v Cyr, 2012 ONCA 919 (CanLII), per Watt JA (3:0), at para 50
  5. ↑ See R v Kocovic, 2004 ABPC 190 (CanLII), per Semenuk J
  6. ↑ see R v Van, 2009 SCC 22 (CanLII), [2009] 1 SCR 716, per LeBel J (5:4) paras 20-23
  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 absence of consideration of the presumption of innocence or reasonable doubt.[1]

Where the defence calls the accused to give evidence that contradicts the crown evidence, the trier of fact must determine:[2]

  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:[3]

  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.
  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

The order of the steps are not significant but the steps must all be applied separately.[4]

It is wrong when considering conflicting evidence of credibility to "weigh" one story over the other.[5] 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.[6] To prefer one testimony over another has the effect of reversing the onus upon the accused.[7]

There is nothing preventing a judge from believing both the complainant and the accused even where they gave divergent or contradictory evidence[8]

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.[9]

Purpose of W(D) Test

The purpose of the WD test is to ensure that the trier 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".[10] It further intends to make clear that the burden never shifts from the Crown to prove every element of the offence.[11]

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.[12]

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.[13]

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

Proposed Reformluation

In Alberta, the test for credibility has been re-written as comprising several stages.[16] At the first stage it should be made clear that:[17]

  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:[18]

  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".[19]

  1. ↑ R v Newman, 2018 ABPC 143 (CanLII), per Pharo J, at para 18
  2. ↑ R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, per Cory J
    R v PNM (1995), 1996 CanLII 4976 (SKCA), per Tallis JA - frames it as a four step inquiry
    R v Minuskin, 2003 CanLII 11604 (ON CA), (2004), 181 CCC (3d) 542 (Ont. C.A.), per Rosenberg JA, at p. 550 R v BD, 2011 ONCA 51 (CanLII), per Blair JA, at paras 102-14
    R v Turmel, 2004 BCCA 555 (CanLII), [2004] BCJ No. 2265 (C.A.), per Newbury JA, at paras 9-17
    R v Gray, 2012 ABCA 51 (CanLII), per Martin JA (3:0), at para 42
    R v Vuradin, 2013 SCC 38 (CanLII), per Karakatsanis J (5:0), at para 21
    R v Tyers, 2015 BCCA 507 (CanLII), per Stromberg-Stein JA (3:0), at paras 12, 15
    R v Mann, 2010 BCCA 569 (CanLII), per Chiasson JA, at para 31
  3. ↑ 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), per Bourgeois JA, at para 23
  4. ↑ R v JHS, 2007 NSCA 12 (CanLII), per Saunders JA - on appeal to SCC
  5. ↑ R v BGS, 2010 SKCA 24 (CanLII), per Ottenbreit JA (3:0), at para 9
  6. ↑ R v Challice (1979) 45 CCC (2d) 546 (Ont CA), 1979 CanLII 2969 (ON CA), per Morden JA
    R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J
    R v Chan (1989), 52 CCC (3d) 184 (Alta CA), 1989 ABCA 284 (CanLII), per curiam
    R v Jaura, [2006] O.J. No. 4157, 2006 ONCJ 385 (CanLII), per Duncan J, at paras 12, 13
  7. ↑ R v Abdirashid, 2012 ABPC 22 (CanLII), [2012] A.J. No 131, per Bascom J, at para 6
  8. ↑ R v Nadeau, 1984 CanLII 28 (SCC), [1984] 2 SCR 570, per Lamer J
  9. ↑ Canadian Criminal Evidence, Second Edition, by P.R. McWilliams, Q.C., at page 652
    R v Nykiforuk (1946), 86 CCC 151 (Sask. C.A.), 1946 CanLII 202 (SK CA), per MacKenzie JA
  10. ↑ 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”)
  11. ↑ JHS, supra, at para 13
  12. ↑ R v JAH, 2012 NSCA 121 (CanLII), per Bryson JA, at para 7
    R v NM, 2019 NSCA 4 (CanLII), per Bourgeois JA, at para 25
  13. ↑ NM, ibid., at para 25
  14. ↑ W(D), supra, at p. 758 [SCR]
    JHS, supra, at para 14
    R v Vuradin, 2013 SCC 38 (CanLII), per Karakatsanis J (5:0), at para 26
  15. ↑ R v JP, 2014 NSCA 29 (CanLII), per Beveridge JA, at paras 62 to 64, 73, 85
  16. ↑ R v Ryon, 2019 ABCA 36 (CanLII), per Martin JA (3:0)
  17. ↑ Ryon, ibid., at para 49
  18. ↑ Ryon, ibid., at para 51
  19. ↑ Ryon, ibid., at para 52

Looking at Evidence as a Whole

The steps of WD 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 WD 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), per curiam (3:0), at para 5
    R v Snider [2006] O.J. 879, 2006 ONCJ 65 (CanLII), per MacDonnell J, at para 37
    R v Hoohing, 2007 ONCA 577 (CanLII), 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), (2005), 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]

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."[2]

However, where the judge fails to give reasons and the "road to conviction is nonetheless clear" the omission will not be fatal.[3]

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. [4] 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.[5]

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."[6]

It is certainly permissible however to reject the accused's evidence on the basis that when "stacked beside" all the other evidence.[7]

In explaining the reason to reject 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. [8] This means that The accused evidence can be rejected on the sole basis that it conflicts other evidence that is accepted beyond a reasonable doubt. [9]

Impugning the accused's credibility is a permissible form of post-offence conduct.[10]

Effect of Rejection of Evidence

The rejection of the accused's evidence does not amount to evidence in favour of the Crown.[11]

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.[12] Disbelieving the accused because of their self-interest to be acquitted is a reversible error.[13]

Disbelief of the accused evidence cannot be used as "positive proof of guilt by moving directly from disbelief to a finding of guilt."[14]

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.[15]

Effect of Rejecting the Accused's Evidence

It is an error of law to infer guilt merely from the fact that the accused's evidence has been disbelieved.[16]

  1. ↑ R v CLY, 2008 SCC 2 (CanLII), [2008] 1 SCR 5, per Abella J (4:3)
  2. ↑ R v Lake, 2005 NSCA 162 (CanLII), 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(ONCA), per Laskin JA (3:0)
  3. ↑ R v Stamp, 2007 ABCA 140 (CanLII), per Berger JA, at para 25
    R v CJJ, 2018 ABCA 7 (CanLII), per curiam, at para 35
  4. ↑ Lake, supra, at para 21
  5. ↑ R v YM, 2004 CanLII 39045 (ON CA), per Laskin JA (3:0), at para 30
  6. ↑ R v Surana, 2013 ABPC 164 (CanLII), per Allen J, at para 78
  7. ↑ R v TS, 2012 ONCA 289 (CanLII), 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.")
  8. ↑ R v JJRD, 2006 CanLII 40088 (ON CA), [2006] 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.")
  9. ↑ R v DP, 2017 ONCA 263 (CanLII), per curiam (3:0), at paras 23 to 25
  10. ↑ 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
  11. ↑ R v Nedelcu, 2012 SCC 59 (CanLII), per Moldaver J (6:3) (“rejection of an accused’s testimony does not create evidence for the Crown”)
  12. ↑ R v Drescher, 2010 ABQB 94 (CanLII), per Lee J, at para 30
    R v Murray (1997), 1997 CanLII 1090 (ON CA), 115 CCC (3d) 225 (Ont. C.A.), per Charron JA (3:0)
    R v BG (2000), O.J. No. 1347 (Ont. C.A.)(*no CanLII links)
    R v Masse (2000), O.J. No. 2687 (Ont. C.A.), 2000 CanLII 5755 (ON CA), per curiam
    R v MJ (2002), 2002 CanLII 49364 (ON CA), O.J. No. 1211 (Ont. C.A.), per curiam (3:0)
  13. ↑ R v LB (1993), 1993 CanLII 8508 (ON CA), per Arbour JA (3:0)
  14. ↑ R v MQ, 2010 ONSC 61 (CanLII), per Hill J
  15. ↑ R v JCH, 2011 NLCA 8 (CanLII), per Rowe JA (3:0) , at para 18
  16. ↑ R v To (1992), 1992 CanLII 913 (BC CA), 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), 1991 CanLII 2726 (ON CA), 62 CCC (3d) 97, per Doherty JA at 101

Second Step

The second step in WD 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.

  1. ↑ See WD, supra
  2. ↑ WD, supra
  3. ↑ R v Morin, [1988] 2 SCR 345, 1988 CanLII 8 (SCC), per Sopinka J (6:0), at p. 357 (SCR)
    R v Thatcher, [1987] 1 SCR 652, 1987 CanLII 53 (SCC), per Dickson CJ (7:0)

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] M.J. 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 WD prevents “a trier of fact from treating the standard of proof as a simple credibility contest”
  2. ↑ R v Gray, 2012 ABCA 51 (CanLII), per Martin JA (3:0), at para 40
  3. ↑ R v Dore, 2004 CanLII 32078 (ON CA), (2004), 189 CCC (3d) 526 (Ont. C.A.), per curiam (3:0), at p. 527
    R v SH, [2001] O.J. No. 118 (C.A.), 2001 CanLII 24109 (ON CA), per curiam (3:0), at paras 4-6
  4. ↑ Dore, supra, at p. 527
    SH, supra, at paras 4-6

"Fourth" Step

Several Court's 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 (BC CA), (1991), 68 CCC (3d) 146 (BCCA), per Wood JA (3:0)
    R v PNM (1995), 1996 CanLII 4976 (SKCA), 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]

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]

  1. ↑ R v Moose, 2004 MBCA 176 (CanLII), per Huband JA (3:0), at para 20
  2. ↑ R v DAM, 2010 NBQB 80(*no CanLII links) , at paras 53 and 56
    R v Schauman, 2006 ONCJ 304 (CanLII), per Fairgrieve J, at para 6
    R v CYL, 2008 SCC 2 (CanLII), 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), (2006), 215 CCC (3d) 252 (Ont. C.A.), per Doherty JA, at para 53
    R v REM, 2008 SCC 51 (CanLII), (2008) 235 CCC (3d) 290 (SCC), per McLachlin CJ (7:0), at para 66
    R v Thomas, 2012 ONSC 6653 (CanLII), per Code J, at para 26
  4. ↑ R v Surana, 2013 ABPC 164 (CanLII), per Allen J, at para 71
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