Application of the principles from W.(D.)

R. v. Geddes, 2011 MBCA 44 deals with the application of R. v. W.(D.), [1991] 1 S.C.R. 742. 

 

In theory the case sets out a simple test:

 

“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.”

 

In practice the application of the test is more difficult and in Geddes the judge erred in considering the evidence of the accused in the context of the Crown’s evidence.  Such consideration must be made independently of the Crown’s evidence.  Obviously this is a mental challenge but it is a requirement.  The Court held:

 

16               In the present case, the judge, in my view, erred when he proceeded to assess the accused’s evidence in light of the Crown’s evidence, as was done in C.L.Y.  In my view, this led, first, to an inadvertent shifting of the burden from the Crown to the accused and, second, to the judge’s failure to apply the principle of reasonable doubt to all of the evidence, including the accused’s.