Credibility Explained (Again) By The Supreme Court Of Canada

The Supreme Court has, once again, explained that the decision in R. v. W. (D.), [1991] 1 S.C.R. 742 must not be read as a template for determining credibility issues but rather as a guide, arising in the specific facts of that case. W. (D.) should be read to say merely that the burden of proof never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. Where credibility is a major issue in a trial the rejection of some or all of the accused’s testimony does not, standing alone, mean a conviction ought to follow. Put otherwise, a lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.

Friday’s decision in R. v. J.H.S., 2008 SCC 30 provides:

[8] A series of decisions over at least the past 20 years has affirmed and reaffirmed the proposition that where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard. A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding. The so-called W. (D.) instruction has long roots: R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), at p. 556; R. v. Chan (1989), 52 C.C.C. (3d) 184, (Alta. C.A.), at p. 186; R. v. Morin, [1988] 2 S.C.R. 345, at p. 362; R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.), at p. 155; R. v. MacKenzie, [1993] 1 S.C.R. 212, at pp. 219 and 239; R. v. Levasseur, [1994] 3 S.C.R. 518 (upholding Fish J.A.’s dissent reported at (1994), 89 C.C.C. (3d) 508 (Que. C.A.), at p. 534). W. (D.) has been cited by Canadian courts at all levels in no fewer than 3,743 subsequent reported cases. It has proven to be a fertile source of appellate review. For a recent application, see R. v. C.L.Y., [2008] 1 S.C.R. 5, 2008 SCC 2.

[9] The passage from W. (D.) at issue in this case, as in so many others, is found at pp. 757-58, where Cory J. explained:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, 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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply . . . .

Essentially, W. (D.) simply unpacks for the benefit of the lay jury what reasonable doubt means in the context of evaluating conflicting testimonial accounts. It alerts the jury to the “credibility contest” error. It teaches that trial judges are required to impress on the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.

[10] The precise formulation of the W. (D.) questions has been criticized. As to the first question, the jury may believe inculpatory elements of the statements of an accused but reject the exculpatory explanation. In R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1, the accused did not testify, but his description of the killing of his daughter was put into evidence by way of statements to the police. His description of the event itself was obviously believed. The exculpatory explanation did not amount to a defence at law. He was convicted. The principle that a jury may believe some, none, or all of the testimony of any witness, including that of an accused, suggests to some critics that the first W. (D.) question is something of an oversimplification.

[11] As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.

[12] The third question, again, is taken by some critics as failing to contemplate a jury’s acceptance of inculpatory bits of the evidence of an accused but not the exculpatory elements. In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested an additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. [p. 155]

[13] In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. W. (D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance. In R. v. S. (W.D.), [1994] 3 S.C.R. 521, Cory J. reiterated that the W. (D.) instructions need not be given “word for word as some magic incantation” (p. 533). In R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC 56, Major J. for the majority pointed out that in any case where credibility is important “[t]he question is really whether, in substance, the trial judge’s instructions left the jury with the impression that it had to choose between the two versions of events” (para. 19). The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.