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How does the Court assess the accused's testimony?

In a criminal case, the accused person has the benefit of the presumption of innocence. Moreover, the accused is not required to give advance notice to the Crown about whether they wish to give defence evidence.

If an accused does testify, then a question arises as to how the Court should treat the accused person's evidence, especially if it contradicts the Crown witnesses' evidence.

In the case of R. v. Doucet, 2021 BCSC 1606, the court confirmed the "W.D. Analysis" as follows:

[92]        Taking into account all of the evidence presented by the Crown and the accused, it is necessary to independently assess the credibility and reliability of that evidence. I am required to apply the principles of R. v.W.(D.), [1991] 1 S.C.R. 742 [W.(D.)]
[93]        It is important in the W.(D.) analysis that I consider whether I believe the accused to have been truthful and reliable in his denials that he entered and drove Mr. Wolff's truck, removed items from Mr. Wolff's vehicle, possessed the knife for the prohibited purpose, possessed the drugs for the purposes of trafficking, and resisted or obstructed Constable Goodwin, or used the knife in a prohibited manner. If I do not believe Mr. Doucet'stestimony, but I have a reasonable doubt concerning the veracity of histestimony, I would be left with a reasonable doubt and would be required to acquit him.
[94]        In this analysis, I am guided by the paper written by Mr. Justice Paciocco, (now of the Ontario Court of Appeal), discussing Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment (2017)22 Can. Crim. L. Rev. 31, where he addressed the principles animating W.(D). He reiterated that it is not a formula with "a magical incantation or something to be slavishly followed". In his article, he said:
1.     Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;
2.     A criminal fact-finder who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;
3.     Even if the criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true, there is a reasonable doubt and an acquittal must follow;
4.     Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
5.    Even where the fact‑finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.
[95]        In addition to those principles discussed in W.(D.), the court must also consider the comment of Wood J.A. in R. v. C.W.H. (1991),3 B.C.A.C. 205, 1991 CanLII 3956 (B.C.C.A.) [C.W.H.], suggesting a further component to the W.(D.) framework. That is, he said:
[24]      I would add one more instruction in such cases, which logically ought to be second in the order, namely: if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit.
[96]        The Supreme Court of Canada in R. v. Dinardo, 2008 SCC 24, informed courts that the accused's evidence must be considered in light of the evidence as a whole:
[23]      . . . In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
[Emphasis added.]

The criminal law has developed to ensure that a person charged is presumed innocent and that the state continues to bear the burden to prove the alleged crime beyond a reasonable doubt.

However, if an accused person testifies and their version is rejected by the trial judge, then this negative finding can be difficult to appeal. I intend on discussing this issue in future blog posts.

As such, if you have been charged with a crime and have a defence then it is critical to discuss the circumstances with legal counsel before your trial starts.

Written by
Mark J. Chiu
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