R. v. W.G.L., 2020 NSSC 144
[23] Jurisprudence recognizes that there is a difference between credibility and reliability. In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), Doherty J.A. wrote (at p. 526):
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. …
[24] In R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, Watt J.A. described the difference between credibility and reliability (at para. 41):
Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately
(i)observe;
(ii)recall; and
(iii)recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (R.J.) (1995), 1995 CanLII 3498 (ON CA), 80 O.A.C. 161; 22 O.R. (3d) 514 (C.A.), at 526 [O.R.].
[29] In considering credibility in the case at Bar, I have carefully considered and applied the relevant jurisprudence as well as Justice Paciocco’s observations, the underlying principles he references, suggested “propositions”, and his “credibility checklist”.
[30] I will quote directly from the article rather than attempt to summarize it:
“What, then, are the underlying principles that drive W. (D.) reasoning? Framed as they apply in criminal trials where there is evidence inconsistent with guilt, they are:
(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 inconsistent with guilt, if the fact-finder is left unsure 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.
…
(b) The Reach of the “W. (D.) Framework”
Despite popular belief, the W. (D.) framework is not confined to “he said/she said” cases, or to sexual offence cases where the accused person testifies, such as R. v. W. (D.). The facts of the case do not drive the framework. Instead, the underlying purpose of preventing conviction in the face of reasonable doubt does.
The link between the W. (D.) framework and the concept of reasonable doubt can best be demonstrated by considering a civil case, C. (R.) v. McDougall.17 There the civil defendant sought to rely on W. (D.)'s underlying principles. The Supreme Court of Canada held that they do not apply, and with good reason, to the standard of proof in a civil case, which is “the balance of probabilities.” Consequentially, balance of probability inquiries can legitimately devolve into credibility contests. In a civil lawsuit, for example, the plaintiff will win if it offers testimony addressing the components of the relevant cause of action, and that testimony is preferred to conflicting testimony offered by the defendant.
…
*37 For this reason, the W. (D.) framework does not apply in criminal cases where the Crown bears a “balance of probabilities” burden, such as in criminal forfeiture order applications under s. 16 of the Controlled Drugs and Substances Act, or in mental disorder fitness hearings.
Similarly, the W. (D.) framework does not apply where “reasonable grounds” standards are used, such as in firearms prohibition applications under Criminal Code s. 111, or during contested “peace bond” hearings either at common law18or under Criminal Code s. 810 and its associated provisions.
Simply put, if the standard of proof assigned to the Crown is not proof beyond a reasonable doubt, the W. (D.) framework does not apply. If the standard of proof is beyond a reasonable doubt, the W. (D.) framework may apply, depending upon the nature of the factual issues at stake.
In an informative extra-judicial paper Justice M. Code offered judges this advice on the nature of the factual issues that trigger the framework:
“[T]he W. (D.) instruction should be introduced into your reasons, and into the charge to the jury, when dealing with elements of the offences charged and the elements of any defences raised by the evidence, assuming there is conflicting evidence in relation to those elements, thus giving rise to issues of credibility.”19
When Justice Code used the term “credibility” he did what all jurists do when it comes to W. (D.). He spoke of “credibility” not in its narrow, technical sense, as relating solely to whether the witness was attempting to be honest or truthful.20 He used the term “credibility” more generically as including “reliability” concerns relating to the ability of an honest witness to provide accurate information.
Simply put, when references are made in the W. (D.) framework to “credibility,” they must be understood as including both the credibility and reliability of the evidence in question.
The case of R. v. L. (T.)21 is illustrative. There, witnesses offered descriptions of the suspect that were inconsistent with the accused being the perpetrator. The Crown did not contend that these witnesses were being dishonest when describing the suspect. Its position was that other evidence in the case showed the witnesses to have honestly been mistaken. Even though technically the contest was about reliability and not credibility, the Ontario Court of Appeal held that the W. (D) framework should nonetheless have been applied to determine whether this identification raised a reasonable doubt about the guilt of the accused.22 References to “credibility” in the W. (D.) framework include “reliability.”
*38 The meaning of the term “conflicting evidence” referred to by Justice Code also has to be understood. First, this phrase is not confined to situations where two witnesses offer competing accounts. Suppose, for example, that the Crown case on the issue of identity is entirely circumstantial, as it would be where DNA or fingerprints are relied upon to link the accused to the offence. If the accused testified and denied committing the crime, the W. (D.) framework would have to be applied, even though no Crown witness said that the accused did so.
By the same token, as Justice Code's formula makes clear, not all conflicting evidence triggers the need for the W. (D.) framework. In the language of Justice Blair in R. v. D. (B.), the W. (D.) framework applies not to “any single fact or item of evidence”, but rather to “vital” issues,23 what Justice Code describes as the “elements of the offence,” or the “elements of a defence.”
…. As the Supreme Court of Canada made clear in R. v. Morin,24 the standard of proof, “beyond a reasonable doubt,” does not apply to “individual pieces of evidence.” It applies to the overall “determination of ultimate issues.”25
As indicated, Justice Code captured this basic point by referring in his proposition to conflicting evidence relating to the “elements of the offences charged and the elements of any defences raised by the evidence.” This is helpful, since these are the things that the burden of proof “beyond a reasonable doubt” generally applies to during a criminal prosecution. The Crown must always prove the elements of the offence beyond a reasonable doubt, and where an ordinary defence--such as self-defence, necessity, duress, provocation, or mistake of fact-- is in issue, the Crown must disprove that defence beyond a reasonable doubt.
Not all defences operate this way, however. There are three “reverse onus defences” known to law--“mental disorder,”26“automatism,”27 and “extreme *39 intoxication.”28 As the name “reverse onus defences” suggests, when these defences are put in play the Crown need not disprove them beyond a reasonable doubt, as it ordinarily must when there is an air of reality in the evidence that a defence might apply. Instead, the burden is on the accused to establish “reverse onus defences” on the balance of probabilities, or the defence fails. The W. (D.) framework therefore has no application when deciding whether reverse onus defences have been made out. The suggestion that the W. (D.) framework applies to “any defence” that is in issue should therefore be approached with caution. The framework applies to most defences--“ordinary defences”--but not to “reverse onus defences.”
Speaking generally then, there will be “conflicting evidence” giving rise to the application of the W. (D.) framework where testimony is offered during the guilt phase of the trial that, if believed, can raise a reasonable doubt on a matter the Crown is required to prove beyond a reasonable doubt to secure a conviction. As indicated, the framework will apply where this is so, even if testimony from the accused is not the source of the evidence inconsistent with guilt.”
Next, are the propositions that Justice Paciocco puts forward:
“Proposition 1: The W. (D.) framework applies in determining guilt during criminal trials where:
• there is evidence (whether from the testimony of the accused, or defence witnesses, or arising from the Crown case) that, if true, is capable of preventing the Crown from proving beyond a reasonable doubt, (1) an element of the offence, or (2) capable of preventing the Crown from disproving beyond a reasonable doubt an element of a defence that is in play (other than mental disorder, automatism or extreme intoxication);and
• that evidence must be evaluated for its credibility and/or reliability before it can be acted upon.
Proposition 2--A criminal trial is not a “credibility contest.” It is a trial to determine whether the Crown has proved the guilt of the accused on the specific charges alleged, beyond a reasonable doubt. It is therefore wrong to decide criminal cases where there is conflicting evidence about whether the accused is guilty, simply by deciding which version of events is preferred. The decisive question is whether, considering the evidence as a whole, the Crown has proved the guilt of the accused on the specific charges alleged, beyond a reasonable doubt.
Proposition 3--In deciding whether the Crown has proved the accused to be guilty beyond a reasonable doubt:
(a) If you accept as accurate evidence that cannot co-exist with a finding that the accused is guilty, obviously you must acquit;
(b) 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;
(c) 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
(d) 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.
Proposition 4--In deciding whether the Crown has proved the accused to be guilty beyond a reasonable doubt the evidence must be considered as a whole. It is therefore possible to reject entirely evidence that is inconsistent with the guilt of the accused and convict solely because of the considered and reasoned acceptance beyond a reasonable doubt of evidence that the accused is guilty.
Proposition 5--As a matter of best practices in a judge alone trial where there is conflicting evidence about guilt that has to be evaluated for its credibility:
(a) it is prudent to make explicit reference to the W. (D.) principles when giving judgment;
(b) trial judges may assess the evidence in the order that logically commends itself, so long as they do not arrive at an ultimate conclusion about the guilt of the accused before considering the evidence in its entirety, and so *73 long as it is clear that they are not simply comparing conflicting evidence to find the version they prefer; and
(c) trial judges should explain how and why they have resolved each of the W. (D.) rules by addressing each of the important, live credibility issues that arose in the case.
Proposition 6--The principles underlying the W. (D.) framework, expressed to fit the relevant context, must be respected whenever there is testimony before a court that is inconsistent with an effort by the Crown to discharge a burden it carries to prove a fact beyond a reasonable doubt, including in voluntariness voir dires, during sentencing hearings where aggravated factors relied upon by the Crown are contested, or where the Crown seeks to rely on a single item of evidence that, if accepted, would be determinative of guilt.”
[31] This is also an opportune moment to reiterate that, according to Justice Paciocco:
“it is common for jurists to believe… that if the exculpatory evidence, viewed alone, cannot be rejected in its entirety because of its own inherent credibility problems, an acquittal must follow. This is a misconception, no doubt provoked by the sequential presentation of the W. (D.) rules--“first,” “second,” “third.” In fact, evidence favourable to the accused is not to be assessed in isolation from the conflicting evidence offered by the Crown.56 Even under W. (D.), the evidence in a criminal trial must be considered as a whole. As a result, it is permissible for a trial fact-finder to reject entirely the exculpatory evidence simply because of the imposing strength of the Crown case, even if no specific reasons can be articulated for why the accused's evidence is disbelieved.
The decision in R. v. D. (J.J.R.),57 once again a “he said/she said” case, is illustrative.58 There, the trial judge explicitly recognized that “there was nothing in the substance of the appellant's evidence or in the manner in which he gave his evidence that would cause the trial judge to disbelieve the evidence.”59 A *48 conviction was nonetheless upheld because the trial judge “rejected totally the appellant's denial because stacked beside [the complainant's] evidence and the evidence concerning the diary,60 the appellant's evidence, despite the absence of obvious flaws in it, did not leave the trial judge with a reasonable doubt.” Justice Doherty went on to comment:
“An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the 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.”61 [17]
…
In my view, it is important to allay the misconception that an acquittal must follow if the defence evidence, viewed in isolation, cannot be disbelieved beyond a reasonable doubt. It is equally important, however, to emphasize the need for a demonstrably “considered and reasoned” basis for accepting the inculpatory evidence beyond a reasonable doubt before conviction is appropriate in such cases. I would therefore recommend the following proposition:
Proposition 4--In deciding whether the Crown has proved the accused to be guilty beyond a reasonable doubt the evidence must be considered as a whole. It is therefore possible to reject entirely evidence that is inconsistent with the guilt of the accused solely because of the considered and reasoned acceptance beyond a reasonable doubt of evidence that the accused is guilty.
[My italicization added]
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