W(D) Analysis in Sexual Assaults Still Proper Authority for Credibility Assessments

Wednesday, February 3, 2021

Cory Wilson is a criminal defence lawyer and sexual assault lawyer serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge and Turner Valley.

W(D) Analysis in Sexual Assaults Still Proper Authority for Credibility Assessments

Across Canada, there have been many decisions walking back or re-imagining the Supreme Court’s seminal test for credibility assessment in R v W(D). Specifically, since the Ontario Court of Appeal’s decision in JJRD, there has been much movement away from following the three-step process for assessing testimony in W(D).

Often, judges have focused on the third step of the W(D) test by first reviewing all of the evidence to demonstrate that an accused’s evidence cannot be viewed in a vacuum without also assessing the Crown’s evidence.

A unique factor in JJRD which was picked-up on by Crown Prosecutors and trial judges was that the trial judge in that case found that though there was nothing inherently concerning abo0ut the testimony of the accused, nevertheless, the strength of the Crown’s case was compelling enough to prove the offence beyond a reasonable doubt.

The Court of Appeal found that the trial judge’s reasons allowed for meaningful appellate review and dismissed the appeal:

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 based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

Following this decision from the Ontario Court of Appeal, JJRD has been repeatedly misapplied, often resulting in mistrials. The primary issue arising from this decision has been a lack of detailed reasons sufficient to explain why the Crown’s evidence overcame reasonable doubt.

In 2020, two Court of Appeal decisions reaffirmed the importance of the test set out in W(D).

In T.A. the appellate court wrote that:

A finding that a complainant is both reliable and credible is not sufficient to satisfy the burden of proof beyond a reasonable doubt.

In TA, the trial judge explicitly noted that the testimony was diametrically opposed and wrote “they both cannot be telling the truth.” The Court of Appeal noted that this approach is the “antithesis of a W(D) analysis” and ignored the possibility that defence evidence could still raise a reasonable doubt even if not fully accepted.

The trial judge’s reasons need to offer a meaningful explanation as to why testimony was accepted or rejected and must also explain how material issues raised at trial were resolved.

In Smith, Justice Harvison Young wrote:

Credibility is not an either/or proposition; treating it as such shifts the burden of proof to the accused by suggesting that the accused can only be acquitted “if the accused’s story is believed rather than that of the complainant.

In Smith, the trial judge failed to grapple with inconsistencies and evidence that tended to corroborate the testimony of the accused by simply rejecting the defence evidence as a whole.

While judges are not required to address every detail of the evidence at trial, a blanket rejection or acceptance of evidence does not permit meaningful review or explain why the trial judge was not left with a reasonable doubt.

In the absence of any analysis of the evidence, other than what appears to have been a complete rejection of the appellant’s testimony, it is not clear whether or how the trial judge resolved these issues.”

These appellate decisions confirm that JJRD is only of assistance is very specific cases when the trial judge is faced with a situation where the testimony of the accused is not outright rejected, but instead, is overcome by a reasoned acceptance of the Crown’s case as a whole and explaining why the strength of the evidence against the accused met the threshold for conviction.

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.