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W(D): Elegant and Simple

The other day I was doing some research on an evidentiary issue form an upcoming trial, specifically how the decision in R. v. W(D) would apply in those circumstances.  In this seminal decision from the Supreme Court, Justice Cory explained how the reasonable doubt standard should be applied in cases of conflicting evidence, specifically on the question of credibility.  The test set-out in W(D) is applied from the most minor of assault cases to some of the most serious cases prosecuted.  It is generally seen when an accused person will testify to a different set of events than a complainant, but courts have held it can be applied in cases where an accused does not testify but there is other evidence suggesting such an evidentiary conflict.

The case is an important one as it clearly highlights what reasonable doubt is all about.  Essentially, it explains that a trier-of-fact need not decide which evidence is preferred, or what they believe to be true, only whether there is reasonable doubt.

I encountered an Alberta case called R. v. D.D.M.  In the case, Justice M.G. Allen stated unequivocally:

It is with great trepidation that any judge would attempt to expand upon the deceptively elegant and simple instructions of Justice Cory.  (Para. 98)

I could not agree more with this statement.  Justice Cory very succinctly explains what a trier-of-fact needs to consider in assessing the evidence.  Eloquent and simple is a really great way to put it:

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.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.