Important review of the test in W(D)

Today’s decision, released a moment ago, in R. v. V.Y., 2010 ONCA 544 provides a useful and important restatement of the test in R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).; note there is a strong dissent by Moldaver J.A. The Court ruled:

[8] The Supreme Court Canada decision in W.(D.) is the seminal authority on defining the burden of proof in criminal trials. It sets out a three stage analysis to be included in jury instructions, and while the steps are familiar and often recited in decisions, they are worth restating as it would, in my view, have been helpful to apply them in the circumstances of this case:

First, if the trial judge believed the evidence of the appellant, he must be acquitted.

Second, if the trial judge did not believe the evidence of the appellant, but was left in reasonable doubt by it, then again, he must be acquitted.

Third, even if the trial judge was not left in doubt by the evidence of the appellant, he was then required to decide whether, on the basis of the evidence he did accept, he was convinced beyond a reasonable doubt by that evidence of the guilt of the appellant.

[9] The three stage analysis in W.(D.) is frequently cited for the proposition that a criminal trial is not a contest of credibility between the accused and the complainant; that disbelieving the accused does not lead necessarily to conviction. As Fish J. describes it at para. 25 of C.L.Y., “[t]he very purpose of adhering to the procedure set out in W.(D.) is to foreclose an inadvertent shifting of the burden of proof where the complainant and the accused have both testified and the outcome of the trial turns on their credibility as witnesses.” (emphasis in the original)

[10] In C.L.Y., the Supreme Court revisited the W.(D.) analysis, and was divided on how strictly it should be applied. In that case, the trial judge had reviewed the evidence of the complainant and concluded that she believed it before considering the evidence of the accused.

[11] Writing in dissent, Fish J. found that the trial judge had committed a reviewable error. In his view, the trial judge had found the accused guilty before even evaluating his evidence, and thus shifted the burden to the accused. As he stated at para. 30 of his reasons:

Unfortunately, the appellant’s presumption of innocence had by that point been displaced by a presumption – indeed, a finding – of guilt. The trial judge could hardly believe both the appellant and the complainant. Before even considering the appellant’s evidence, she had already concluded that she believed the complainant. In effect, the trial judge had thus decided to convict the appellant unless his evidence persuaded her to do otherwise. (Emphasis in the original)

[12] In contrast, the majority stressed that W.(D.) need not be “religiously followed” and saw, “no blue print for error in the trial judge’s failure to observe W.(D.) as a catechism”: paras. 7 and 11. Central to the majority’s reasoning was Abella J.’s conclusion at para. 12 that the mere order in which the trial judge had reviewed the evidence and stated her conclusions did not, of necessity, create a shift in the burden of proof:

The trial judge’s reasons reveal that she understood that a finding that the [complainant] was credible did not mean that the onus shifted to the accused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt.

[13] Significantly both the majority and dissent agreed that it would be an error for a trial judge to find that because a complainant was credible, the onus shifts to the accused to disprove his guilt. What separated the majority and dissent was the majority’s finding that there was nothing to suggest that this error had been committed, while the dissent found that it had been and that following the structure of W.(D.) would have guarded against such error: per Fish J. at para. 31.

[14] In considering issues around the W.(D.) analysis, trial judges are presumed to know the law regarding the presumption of innocence and the burden of proof. They are not required to explain in detail the process they followed to reach a verdict; they only need to give reasons that the parties can understand and that permit appellate review: R. v. Sheppard, [2002] 1 S.C.R. 869.

[15] I would add that it is also essential to keep in mind the comments of Fish J. at para. 33 in C.L.Y.: “[J]udges may know the law yet err in its application; they may know the facts, yet findings of credibility unsupported by the record. What matters in either instance is the substance and not the form of the decision.”