The safest approach for a judicial officer is to quote the case and then apply it, without rephrasing, remembering always the key issue is proof beyond reasonable doubt.
Today's decision in R. v. L.G., 2009 ONCA 895 illustrates the dangers of misapplication:
[7] The last ground of appeal is more troubling. Because the appellant gave evidence, the trial judge was obliged to follow the direction provided in R. v. W.(D.), [1991] 1 S.C.R. 742. The trial judge correctly recited the three steps that this case requires be taken in assessing the evidence before finding guilt beyond a reasonable doubt. However, in applying those steps to the evidence here, the trial judge framed the second step using language different from that of W.(D.). Having first rejected the appellant's evidence, the trial judge moved to the second step of the analysis, but instead of determining whether, nonetheless, the appellant's evidence left her in reasonable doubt (as W.(D.) requires), the trial judge concluded that the appellant's evidence "could not reasonably be true" (emphasis added).
[8] This court has repeatedly said that a trial judge errs in using the "could reasonably be true" test at the second step in the W.(D.) analysis. That is equally true of its equivalents "might reasonably be true" and "can reasonably be true": see R. v. G.H. (2002), 165 O.A.C. 56 (C.A.); R. v. Rattray (2007), 222 O.A.C. 28 (C.A.).
[9] There are good reasons why this test must not be used. It is different from the proper approach to step two set out in W. (D.) (namely, whether, even if the accused's evidence is disbelieved, the trial judge is left in reasonable doubt by it) in several respects. First, it arguably risks reversing the burden of proof and undermining the presumption of innocence: see R. v. Rattray at para. 13.
[10] Second, it asks more of the accused's evidence than step two requires. It invites an objective assessment of the accused's evidence against the standard of what could reasonably be true, rather than simply assessing that evidence to see if it leaves the trier with a reasonable doubt.
[11] Nonetheless, as the jurisprudence in this court demonstrates, there are cases in which this error may not result in reversal. In some, the trial judge has used inappropriate phraseology but otherwise made clear that he or she understands the proper approach to the burden of proof and proof beyond a reasonable doubt. In such a case, while the phrasing is wrong, W.(D.) is followed in substance: see for example R. v. S.K., 2008 ONCA 285. In others, the accused's evidence has been completely rejected and the Crown's case is overwhelming. In essence, this is the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code: see for example R. v. G.H. and R. v. Rattray.
James Morton
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Toronto, Ontario
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