Wednesday, December 26, 2012

Curious decision inconsistent with W(D)?

R. v. Bearfoot, 2012 ONCA 917 was released Christmas Eve. It has a potentially concerning passage:

[3]          The trial judge did not reverse the burden of proof. It was appropriate in considering the appellant's evidence to look at it in the context of the other evidence. Reasoned acceptance of the prosecution's evidence beyond a reasonable doubt was a basis for rejecting the appellant's evidence.

Now the decision is an endorsement and the full background facts are not set out. That said, it appears inconsistent with W(D)  [1991] 1 S.C.R. 742. How can the fact the prosecution's evidence is accepted in and of itself make the evidence of the accused less credible?  This is a useful case for prosecutors. 

As a reminder here is the crucial passage from W(D):

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.

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