Tuesday, August 27, 2013

The trier of fact should not consider the accused’s evidence in isolation

R. v. Menow, 2013 MBCA 72 is a good source for the proposition that an accused’s evidence at trial is not to be considered in isolation:

[16]                     Every person is presumed to be innocent until the Crown has proven his or her guilt beyond a reasonable doubt.  In W.(D.), the Supreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’s evidence” (at p. 757).  Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused.  To ensure the trier of fact remains focussed on the principle of reasonable doubt, the court suggested that the following analysis be undertaken (at p. 758):

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.

[17]                     In support of his position that the trial judge erred in her application of the test set out in W.(D.), the accused encourages this court to accept the following method of analysis of the first two prongs of that test:
•        At the first stage of the analysis the only evidence to be considered by the trier of fact is that of the accused.  The trier of fact must not consider any other evidence called in the trial, but rather, must consider the evidence of the accused in isolation.  Internal inconsistencies in the accused’s evidence or other reasons within that evidence are the only basis on which the trier of fact may determine whether an accused is believed or not.
•        If the evidence of the accused is disbelieved, the trier of fact then proceeds to consider his or her evidence in the context of all of the evidence called at the trial, including the evidence provided by the Crown to determine whether there exists a reasonable doubt as to guilt.
[18]                     Based on the above approach, the accused argues that the trial judge erred by considering the evidence of the complainant and Mr. Charrier when she gave her reasons for concluding that the accused was not believable.  He alleges that such an analysis amounts to choosing between the evidence of the accused and that called by the Crown.  Further, he contends that consideration of the Crown evidence in the manner and order that she did led the trial judge to err in conflating the first and second steps of the W. (D.) analysis, which resulted in her summarily stating in her decision that she did not believe him and that his evidence did not raise a reasonable doubt.  He contends that such a faulty analysis would not have occurred if she had considered his evidence in isolation, as he suggests.
[19]                     The position of the Crown is that the analysis in W.(D.) is contextual and that the trier of fact is entitled to consider all of the evidence called at the trial.  The trier of fact should not consider the accused’s evidence in isolation.
[20]                     The manner in which evidence can be considered in the application of the test in W.(D.) is a question of law.  Therefore, the parties agree, as do I, that the standard of review is correctness.  See R. v. Jaw2008 NUCA 2 (CanLII), 2008 NUCA 2 at para. 54, 432 A.R. 297, R. v. Vuradin (F.)2011 ABCA 280 (CanLII), 2011 ABCA 280 at paras. 46-49, 515 A.R. 25, R. v. Liberatore (M.V.)2010 NSCA 82 (CanLII), 2010 NSCA 82 at para. 9, R. v. McIntosh (J.G.),2010 ABCA 352 (CanLII), 2010 ABCA 352 at para. 2, 493 A.R. 254.
[21]                     The issue of whether or not the evidence of an accused should be analyzed in isolation was specifically considered by the Ontario Court of Appeal in the case of R. v. Hoohing2007 ONCA 577 (CanLII), 2007 ONCA 577 (QL).  In that case, the accused appealed their convictions for sexual assault.  They complained that when instructing the jury, the trial judge explained the first prong of the W.(D.) approach by stating “if you accept the evidence favouring the particular accused … and find it to be factually true when weighed against the contradictory evidence you must acquit that accused on that count” (at para. 12).  One of the grounds of appeal was that such an instruction had the effect of suggesting to the jury that they should choose between the evidence of the accused and that of the complainant.  Feldman J.A., writing on behalf of the court, rejected that argument and noted that the trial judge properly told the jury that they were not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused (at para. 14).  She then stated (at para. 15):

He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation.  A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence.  When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonable doubt.  Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence.  See R. v. Hull, [2006] O.J. No. 3177 at para. 5 (C.A.).  The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

[22]                     Feldman J.A. noted that the court had recently considered the same wording as that used by the trial judge and held that, although it was not the preferred wording, it did not constitute an error (at para. 16):

This court recently considered the same impugned wording in the case of R. v. Campbell, [2003] O.J. No. 1352.  Relying on its earlier 1996 decision in R. v. D.L.M., [1996] O.J. No. 3596, the court held that the wording in question did not constitute an error.  In Campbell, the court acknowledged that “it would have been preferable to describe this step in terms of considering the accused’s evidence in the context of the entirety of the evidence, since this steers more clearly away from the risk of simply choosing between the accused’s evidence and the complainant’s evidence.”  However, the court did not consider the language fatal because it does not invite the jury to choose between the two versions but recognizes that the jury can only consider the accused’s evidence in the context of the other evidence.  See also R. v. Requina, [1994] O.J. No. 1133 (C.A.) at paras. 5-6.

See also R. v. Chittick (D.S.)2004 NSCA 135 (CanLII), 2004 NSCA 135 at paras. 23-24, 228 N.S.R. (2d) 81, and R. v. Mends2007 ONCA 669 (CanLII), 2007 ONCA 669 at para. 18 (QL).
[23]                     Based on the above, I would reject the method of analysis suggested by the accused.  To assess the evidence of the accused in a vacuum ignores the fact that the whole purpose of the trial is to determine whether or not the accused is guilty of the offence for which he or she is charged.  It is impossible for an accused’s evidence to be considered without a factual or contextual backdrop for the charge itself.  Furthermore, such a method of analysis would effectively prevent the court from considering evidence favourable to the accused when deciding whether or not to believe him or her.  To ignore evidence favourable to an accused person in assessing his or her credibility is contrary to principles of fundamental justice.
[24]                     The accused maintains that the trial judge also fell into error by analyzing his evidence and finding him unbelievable in the first stage of her analysis.  He says that this order of analysis caused her to conflate the first and second prongs of the W.(D.) test in that, having already found him unbelievable, there was nothing left for her to consider in respect of the other evidence called in the trial.
[25]                     In the recent case of R. vVuradin, 2013 SCC 38 (released after the oral hearing of this matter) Karakatsanis J. writing on behalf of a unanimous court, clearly rejected such a notion when she stated (at para. 21):

….  The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration.  ….

[26]                     Moreover, contrary to the accused’s assertion that the trial judge conflated the first and second stages of the W.(D.)analysis, failure by the trial judge to specifically analyze the second prong of W.(D.) does not necessarily constitute an error in law.  See R. v. D.K.B.2012 MBCA 114 (CanLII), 2012 MBCA 114 at paras. 5-6, and R. v. Gagnon,2006 SCC 17 (CanLII), 2006 SCC 17 at para. 11, 2006 SCC 17 (CanLII), [2006] 1 S.C.R. 621.
[27]                     In Vuradin, this concept was reinforced by Karakatsanis J. when she stated (at para 27):

In the result, the trial judge rejected the appellant’s testimony.  In Boucher 2005 SCC 72 (CanLII), [2005 SCC 72, [2005] 3 S.C.R. 499], Charron J. (dissenting in part) stated that when a trial judge rejects an accused’s testimony, “it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind” (para. 59).  Similarly, inR.E.M. 2008 SCC 51 (CanLII), [2008 SCC 51, [2008] 3 S.C.R. 3], McLachlin C.J. stated that “the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt” (para. 66).

[28]                     In this case, it is clear that the trial judge rejected the testimony of the accused to such an extent that she was left with no reasonable doubt after conducting the first two stages of the W.(D.) analysis.  Therefore, the accused’s argument with respect to the manner in which the trial judge undertook the W.(D.) assessment cannot be sustained.