Assessments of the credibility or reliability of exculpatory evidence in a criminal case

R. v. Bucik, 2011 ONCA 546, released on-line today, highlights the need for great caution when applying the test from R. v. W. (D.), [1991] 1 S.C.R. 742.

An accused’s statement, even if not believed, may raise a reasonable doubt so long as it is not rejected as untrue. This is a counterintuitive point and so must be made very clear.

The Court held:

[33] The lesson from R. v. W. (D.), [1991] 1 S.C.R. 742, is that assessments of the credibility or reliability of exculpatory evidence in a criminal case do not raise either/or choices, but must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt. An instruction to the jury to the effect that exculpatory evidence can be the source of a reasonable doubt even if not affirmatively believed is particularly important because it is arguably not the kind of common sense reasoning that jurors would apply in making credibility assessments in their day-to-day lives.