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Joseph Neuberger, Diana Davison
Neuberger & Partners LLP
Toronto Criminal Defence Lawyers
When an accused testifies in a sexual assault trial it triggers what is classically referred to as a W.(D.) framework for assessing reasonable doubt. In 1991, the Supreme Court of Canada, in R. v. W.(D.),  1 S.C.R. 742, provided a three step process to ensure that a trier of fact did not simply choose whom to believe between the competing testimony of a complainant and accused person.
Since the decision in W.(D.) there have been flaws identified in the original wording or approach. Among the clarifications and alterations made, an article titled “Doubt About Doubt: Coping with R. v. W.(D.) and Credibility Assessment” by Ontario Justice Paciocco has become increasingly popular. It is regularly cited by provincial and appellate courts across Canada.
Published in the Canadian Criminal Law Review, February 2017, the article was designed both for judges and to assist lawyers in preparing submissions at trial. This is of particular assistance in sex assault trials and domestic assault trials when often there are only two witnesses in the proceeding.
One of the main criticisms of the W.(D.) wording is that it appears to advise a specific sequence assessing credibility. Additionally, Justice Paciocco points out that the W.(D.) framework actually applies to all the evidence at trial, not just when an accused testifies.
The original instruction is only three steps:
First, if you believe the evidence of the accused, obviously, you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.
One of the first major changes came from the case of R. v. J.J.R.D., 2006 CanLII 40088 (ON CA) in which the trial judge found the accused’s testimony believable but still convicted. This appeared to violate the first step of W.(D.). The Court of Appeal upheld the conviction based on the third step – the whole of the evidence.
The article recommends starting at the third step of W.(D.) which also ensures that “even if no exculpatory evidence had ever been presented; the accused should not be convicted unless the evidence that is credited proves the guilt of the accused beyond a reasonable doubt.”
Justice Paciocco also warns that, when invoking J.J.R.D., “there are obvious risks in rejecting exculpatory evidence that is immune from criticism.” The strength of the inculpatory evidence must be extremely compelling to surpass a reasonable doubt in such a situation.
“Doubt About Doubt” offers a reformulation of W.(D.) to better articulate the underlying principles:
(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 cannot decide 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.
In addition to offering guidance on assessing reasonable doubt, Justice Paciocco also gives a useful outline of all the factors that should be considered in relation to credibility and reliability of testimony. The increased citations of “Doubt About Doubt” demonstrates that the courts are receptive to and appreciative of new ways to articulate their reasons for judgement.
Care must be taken to draft defence closing submissions in a sexual assault or dometic assault trial, to carefully lay out the reasons for the court to reject the credibility of the complainant and to support the evidence of the accused person taken into consideration the W.(D). principles.