The Ongoing Error of Credibility Contests in Sexual Assault Cases
On behalf of Neuberger & Partners LLP posted in Sexual Assault on Wednesday January 13, 2021.
Joseph A. Neuberger
Neuberger & Partners LLP, Criminal Defence Lawyers
Since the Ontario Court of Appeal decision in R. v. J.J.R.D.,  O.J. No. 4749 there has been significant movement away from following the three step process for assessing testimony, as previously outlined in the Supreme Court’s 1991 decision in R. v. W.(D.)
Many judges have focused on the third step, beginning with a review of the evidence as a whole. This is in recognition that the evidence of an accused cannot be viewed in a vacuum as if the Crown called no evidence at all. Just as a recitation of W.(D.) does not prove that the principles were followed, the three prongs do not have to be assessed in any particular order.
The unique factor in the case of J.J.R.D. was that the trial judge found that, though there was nothing inherently troubling about the testimony of the accused, nevertheless, the strength of the Crown’s case was compelling enough to meet the burden of proof.
The Court of Appeal ruled that the trial judge’s reasons allowed for meaningful appellate review and dismissed the appeal. As Justice Doherty wrote:
“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 or the substance of the accused’s evidence.”
Pursuant to that decision, J.J.R.D. has been misapplied, in some cases resulting in retrials. The primary issue has been a lack of detailed reasons sufficient to explain why the Crown’s evidence overcame reasonable doubt.
In two December 2020 Ontario Court of Appeal decisions, the importance of W.(D.) was reaffirmed.
In R. v T.A., 2020 ONCA 783 the Ontario Court of Appeal 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 that case, the trial judge had explicitly noted that the testimony was diametrically opposed and stated “[t]hey 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 R. v. Smith, 2020 ONCA 782, 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 the case of Smith, the trial judge had 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.
As Justice Harvison Young noted, “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 decisions confirm that J.J.R.D. is only of assistance in 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 whole and explaining why the strength of the evidence against the accused met the threshold for a conviction.
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