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R. v. Berg, 2026 SCC 21
In R. v. Berg, the Supreme Court of Canada clarifies that trial judges cannot convict an accused simply by accepting a complainant’s testimony — and corrects a doctrine that has quietly distorted sexual assault criminal trials across the country.
Joseph Neuberger, Michael Bury and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto · June 5, 2026
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CITATION 2026 SCC 21 |
DECISION Appeal Dismissed (9–0) |
JUDGMENT DATE June 5, 2026 |
01 • THE FACTS
Matthew Berg was convicted of sexual assault after a trial in Saskatchewan. The central factual dispute was straightforward: the complainant said she did not consent to sexual intercourse; Berg said the encounter was entirely consensual. Both testified. The trial judge rejected Berg’s account, and a majority of the Saskatchewan Court of Appeal upheld the conviction.
Berg’s appeal to the Supreme Court raised two grounds: that the trial judge failed to resolve material inconsistencies in the complainant’s testimony, and that the judge improperly used her evidence to dismiss his account without adequate analysis. The Supreme Court unanimously dismissed the appeal — but used the occasion to deliver a pointed correction to Canadian trial courts.
02 • THE PROBLEM: A PASSAGE FROM 2006 DOING TOO MUCH WORK
The trial judge had relied on a passage from the Ontario Court of Appeal’s 2006 decision, R. v. J.J.R.D., to explain why he rejected Berg’s testimony. That passage had become a go-to formula for trial judges wrestling with classic “he said, she said” situations — cases where neither party’s account has obvious flaws when viewed in isolation.
“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.”
— Doherty J.A., R. v. J.J.R.D. (2006), para. 53
On its face, this seems helpful. In practice, the Supreme Court found, it was being dangerously misapplied.
03 • WHAT J.J.R.D. ACTUALLY WAS — AND WASN’T
The Court’s central correction is conceptual. J.J.R.D. was an appellate sufficiency-of-reasons case. Doherty J.A. was explaining, at the appellate level, that a trial judge’s reasons were adequate to permit meaningful review — he was not laying down a formula for how trial judges should structure their credibility analyses in sexual assault trials.
By the time of Berg’s trial, however, J.J.R.D. had migrated into the trial itself. Judges were invoking the passage as a kind of licence: having found the complainant credible, they could use that finding alone to dismiss an accused’s evidence. The Supreme Court — agreeing with Paciocco J.A.’s earlier analysis in R. v. C.L. (2020 ONCA 258) — said this was wrong.
The risk, the Court explained, is that it transforms the trial into precisely the sort of credibility contest that the W.(D.) framework was designed to prevent. Under the presumption of innocence, guilt cannot rest solely on whether the trier of fact prefers the Crown’s version of events.
04 • WHAT THE LAW ACTUALLY REQUIRES
Reading J.J.R.D. in full — including the words “beyond a reasonable doubt” that are often dropped when the passage is cited — the Supreme Court clarified that accepting a complainant’s testimony cannot be the end of the analysis. The trial judge must still be satisfied, on the totality of the evidence, that the case is proved beyond a reasonable doubt. That standard demands more than a “considered and reasoned acceptance” of one witness’s account.
| KEY TAKEAWAYS FROM BERG | |
|---|---|
| 1 | Trial judges should not use J.J.R.D. when structuring W.(D.) analyses or giving W.(D.) jury directions. |
| 2 | J.J.R.D. is an appellate sufficiency-of-reasons principle — it was never meant to be applied by trial judges to resolve credibility contests. |
| 3 | Convictions must always rest on proof beyond a reasonable doubt — not merely on a reasoned preference for the complainant’s testimony. |
| 4 | The trial judge in Berg was saved because, on a functional reading of his reasons, he did not actually rely solely on belief in the complainant — he assessed the totality of the evidence including corroborating circumstantial evidence. |
05 • WHY THIS MATTERS BEYOND BERG
The Supreme Court’s footnote alone tells the story. The Court cites a long string of Ontario and Nunavut Court of Appeal decisions where the J.J.R.D. passage was invoked — and often criticized — in trial proceedings. The problem has been building for nearly two decades. Berg finally names it and draws the line.
| IMPLICATIONS FOR EACH PARTY | |
|---|---|
| Defence lawyers | A useful tool to challenge convictions in cases where a trial judge’s W.(D.) analysis leans heavily on J.J.R.D. without genuine engagement with reasonable doubt. |
| Crown counsel & trial judges | A reminder that believability and proof beyond a reasonable doubt are related but distinct standards. Acceptance of the complainant’s testimony is a necessary but not sufficient condition for conviction. |
| Complainants & advocates | The decision is careful to note that none of this diminishes the weight a credible complainant’s testimony can carry — it simply cannot, by itself, be the whole of the case. |
Berg’s own conviction stands. But the doctrinal correction the Court delivers here may shape criminal trials — particularly sexual assault proceedings — for years to come.
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. — Heard April 14, 2026 — Reasons delivered June 5, 2026.
READ THE FULL DECISION HERE: R. v. Berg, 2026 SCC 21
Legal Commentary | R. v. Berg, 2026 SCC 21 | Supreme Court of Canada | June 5, 2026
This post is for general informational purposes only and does not constitute legal advice. Neuberger & Partners LLP, Criminal Lawyers Toronto, Sex Assault Defence Lawyers, Newmarket.
