Burden of proof in criminal trials: application of R. v. W.(D.)

This week the Ontario Court of Appeal released a split judgment (Justice LaForme writing for himself and Justice Laskin; Justice Moldaver dissenting) that demonstrates the proper manner to assess conflicting evidence when applying the burden of proof.  The decision is called R. v. V.Y.

In cases appearing before courts throughout the country every day, Judges and juries need to listen to evidence of various parties and make determinations on whose evidence they find credible and believable and whose they do not.  The simplest example is a case where a complainant makes an accusation against an individual and the individual denies the allegation (often referred to as a “he said/she said case).  Since all the trier-of-fact has to work with is viva voce evidence, the only way to determine guilt or innocence is to assess the credibility and believability of the witnesses testimony.

The test is not, however, whom the trier-of-fact believes is telling the truth.  It is not a balancing act.  This is because an accused must be proven guilty beyond a reasonable doubt.  Thus, even if a complainant is believed, the accused must be disbelieved, and even if an accused is disbelieved, a trier-of-fact must ask if they have reasonable doubt.  The test isn’t whether someone is probably guilty, or which party is more believable, but whether they are guilty beyond a reasonable doubt.

The Supreme Court considered the three step test mentioned above in R. v. W. (D.):

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 considering all three parts of the test, a trier-of-fact may not, at any point, shift the burden of proof to the accused.  For example, if a complainant is believed it does not become the accused’s responsibility to disprove the claims.  The accused’s testimony is to be considered independently and, if also found to be believable, or if it raises a reasonable doubt, they should be found not guilty.  Of course, if the complainant is not believed, a finding of not guilty must be made, absent some form of admission by the accused.

The majority held in V.Y. that the trial Judge did not properly follow the W.D. analysis.  Justice LaForme wrote that the trial judge, having found the complainant credible, appeared to have shiften the burden to the accused to prove his innocence.  This goes against the presumption of innocence and is enough to order a new trial.

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