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Criminal - Reasonable Doubt (2). R. v. Berg [reasons/JJRD/credibility]
In R. v. Berg (SCC, 2026) the Supreme Court of Canada considered the leading JJRD case regarding the adequacy of reasons for decision, and it's interaction with both credibility and reasonable doubt [as in WD] - this in a sexual assault context:[3] The trial judge rejected Mr. Berg’s account. He noted that he had no reason to reject Mr. Berg’s testimony when considered in isolation. Nevertheless, he went on to state: “I reject Mr. Berg’s account because I accept [the complainant’s] testimony” (A.R., vol. II, at p. 157). This statement would become the subject of much of the debate on appeal and, standing alone, would be problematic. Yet, a functional reading of the trial judge’s reasons clearly shows that he did not engage in a credibility contest by dismissing Mr. Berg’s testimony solely because he preferred that of the complainant. Instead, the trial judge analysed Mr. Berg’s account based on the totality of the evidence, alongside the complainant’s credible testimony and the corroborating circumstantial evidence, and only then was satisfied of Mr. Berg’s guilt beyond a reasonable doubt.
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[6] We write to provide guidance on, and correct potential errors that may arise from, the application of the principles flowing from the Court of Appeal for Ontario’s decision in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37. Reliance on J.J.R.D. has become commonplace for trial judges faced with conflicting testimonial accounts. It is often used to resolve situations where neither of two different testimonial accounts contain any frailties standing alone.
[7] J.J.R.D. involved a claim of insufficiency of reasons. In that case, the trial judge convicted the accused, even though his testimony had no obvious flaws standing alone, because the complainant’s testimony and the circumstantial evidence were sufficiently compelling to reject his account. On appeal, Doherty J.A. explained that the trial judge’s line of reasoning was adequate and permitted effective appellate review. In a now oft-cited passage, at para. 53, he observed:An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [8] The trial judge in this case drew on this passage in structuring his W. (D.) analysis and rejecting Mr. Berg’s testimony (R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742). The dissenting justice at the Court of Appeal held that the trial judge failed to abide by J.J.R.D. and erred by rejecting Mr. Berg’s testimony without a “considered and reasoned acceptance” of the complainant’s evidence.
[9] As a general rule, trial judges should not rely on J.J.R.D. when structuring their W. (D.) analyses or when providing W. (D.) directions to a jury. J.J.R.D. is a case about appellate review for sufficiency of reasons and it does not purport to set out a formula for performing a W. (D.) analysis. It was intended to apply to appellate review of trial decisions when assessing whether the trial judge’s reasons were sufficient to permit appellate review, not to be applied by trial judges themselves. We agree with Paciocco J.A. in R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at para. 32, when he observed:.... D. (J.J.R.) was a sufficiency of reasons case. It was not a jury instruction case, nor even a case about the content of the W. (D.) formula. The issue was whether the reasons given by a trial judge, sitting alone, were sufficient to permit effective appellate review: see D. (J.J.R.), at paras. 1-2. That is why Doherty J.A. describes “a considered and reasoned acceptance . . . of the truth of conflicting credible evidence” as an “explanation for the rejection of an accused’s evidence”. The case is about whether the trial judge explained the conviction by offering a considered and reasoned basis . . . . It does not purport to offer a formula for overcoming facially unassailable exculpatory evidence. [Emphasis deleted.] [10] When invoked in a trial setting, J.J.R.D. may mislead the trier of fact to think that they may reject the accused’s account solely based on a “considered and reasoned” acceptance of the complainant’s testimony.[1] This raises the spectre of turning trials into credibility contests — the very error W. (D.) was designed to prevent. The presumption of innocence means that a guilty verdict cannot rest only on whether the trier of fact believes the Crown’s evidence or finds it more plausible (W. (D.), at p. 757; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9).
[11] Instead, a conviction must always rest on proof beyond a reasonable doubt. And proof beyond a reasonable doubt demands more than a “considered and reasoned acceptance” of the complainant’s evidence. Indeed, in J.J.R.D., Doherty J.A. was characteristically careful in his formulation: a trial judge can reject an accused’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” (para. 53 (emphasis added)). Read in full, this passage maintains that appellate courts should ensure that trial judges have considered the conflicting evidence — whether it is only the complainant’s testimony or also includes circumstantial evidence — and explained why it meets the high standard of proof beyond a reasonable doubt. It is not, by contrast, an invitation for trial judges to enter convictions solely based on a “considered and reasoned” acceptance of a complainant’s testimony.
[12] In this case, the trial judge did not use J.J.R.D. to resolve a credibility contest, and therefore made no legal error. However, caution is warranted to ensure that J.J.R.D. is not invoked in a manner that short-circuits W. (D.). Accordingly, the appeal is dismissed. . R. v. A.B.
In R. v. A.B. (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "several offences arising from human trafficking and assault of his intimate partner".
Here the court considers the appellant's W.D. argument:NO W.(D.) ERROR
[32] Finally, the appellant argues that the trial judge erred in failing to apply the W.(D.)[4] analysis to the exculpatory features of the complainant’s trial testimony and some of her emails made exhibits at trial. It is argued that the trial judge was required to assess whether the exculpatory portions of the complainant’s evidence raised a reasonable doubt as to the appellant’s guilt.
[33] It is well settled that the W.(D.) analysis applies to any and all exculpatory evidence: R. v. Hoffman, 2021 ONCA 781, 408 C.C.C. (3d) 4, at para. 41; R. v. Panovski, 2021 ONCA 905, 408 C.C.C. (3d) 205, at para. 82; R. v. Fitzpatrick, 2026 ONCA 262, at para. 86. The question is not merely whether the trier of fact accepts the evidence, but rather, whether, even if it is not accepted, the evidence is capable of raising a reasonable doubt.
[34] The trial judge did not expressly apply the W.(D.) analysis to the complainant’s trial testimony, but he did the functional equivalent. It was clear from his reasons that the complainant’s testimony was not capable of raising a reasonable doubt about the appellant’s guilt. This is because the trial judge rejected the complainant’s trial account as a dishonest concoction; finding it to be “implausible, and at times, absurd”. He found that her trial testimony reflected an attempt to “be manipulative”. He noted that the complainant told Crown counsel in an email that she would lie in court unless the prosecution of the appellant was stopped. The reasons leave little doubt that the trial judge found the complainant’s evidence at trial to be dishonest and deliberately deceitful.
[35] Against that backdrop, the exculpatory evidence could not realistically raise a reasonable doubt.
[36] The rule in W.(D.) gives operational expression to the presumption of innocence, and the burden and standard of proof in criminal cases. A reasonable doubt can be based on evidence or the absence of evidence. It can be based on evidence that, while not accepted, has not been completely rejected. This is because various cognitive states of belief exist between complete acceptance of evidence as true, on the one hand, and complete rejection of evidence as untrue, on the other: see R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), at p. 557.
[37] A trier of fact might not be certain that exculpatory evidence is true yet might not be convinced that it is untrue. The trier might think the person is telling the truth but not be sure. The trier might think the person is lying but not be sure. Or the trier might simply not be able to determine whether the person is telling the truth or telling a lie. In each of these instances, the evidence, while not accepted, has not been definitively rejected. The evidence has a continuing, residual value. It remains part of the evidentiary calculus and might be capable of raising a reasonable doubt.
[38] Far different is the situation in which the trier of fact has positively concluded that the exculpatory evidence is untrue. Where, as here, there is a categorical determination that the complainant’s trial testimony has been concocted, it cannot rationally maintain any residual value. A doubt based on falsified evidence cannot be a reasonable doubt.
[39] W.(D.) does not require that a trial judge offer a “magic incantation” or recital of its formula, nor does it require a trial judge to set out the W.(D.) approach with respect to each essential element R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 51; R. v. E.D., 2020 ONCA 633, at para. 14, leave to appeal refused [2020] S.C.C.A. No. 474; see also R. v. T.D., 2024 ONCA 860, at para. 37. What matters is that the trial judge properly applies the presumption of innocence and places the burden of proof on the prosecution throughout. Reading the reasons as a whole, that requirement was satisfied in this case. . R. v. C.P.
In R. v. C.P. (Ont CA, 2026) the Ontario Court of Appeal considered Crown appeal arguments that the trial judge erroneously assessed reasonable doubt on a piecemeal evidentiary basis:2. The trial judge did not consider the evidence piecemeal or apply the reasonable doubt standard to individual pieces of evidence
[31] Second, the Crown argues the trial judge considered the evidence piecemeal – in isolation – and that he applied the reasonable doubt standard to individual pieces of evidence, contrary to the principles enunciated in cases such as R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, and R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 63, 65, and 67-68, leave to appeal to refused, [2012] S.C.C.A. No. 64. We did not call on amicus to respond to this ground of appeal.
[32] Once again, the resolution of this issue does not turn on any disagreement about the governing law. Rather, it turns on whether the trial judge’s reasons demonstrate the errors contended for by the Crown. We are not persuaded that the trial judge considered individual pieces of the evidence in isolation or applied the reasonable doubt standard to individual pieces of evidence.
[33] I begin by observing that the reasons for judgment contain detailed self-instructions on the presumption of innocence, the Crown’s burden of proof beyond a reasonable doubt, and how that burden applies to issues of credibility and reliability. Importantly, the trial judge specifically instructed himself that “the beyond a reasonable doubt standard does not apply to individual pieces of evidence, but instead is considered once the evidence can be viewed as a whole”, and referenced the governing authority of Morin.
[34] The Crown relied on several areas in its written submissions to argue that the trial judge considered the evidence piecemeal and applied the reasonable doubt standard to individual pieces of evidence. I have considered all of the areas argued by the Crown, but I focus my reasons on the two areas the Crown emphasized in oral submissions.
[35] One Crown witness at trial was a woman who saw the respondent and the complainant in a hotel elevator and observed what she perceived to be sexualized contact between them that was not appropriate for a father and daughter. The Crown argues that the trial judge considered the evidence of this witness piecemeal and failed to consider it in the context of the evidence as a whole.
[36] I disagree. The trial judge considered this witness’s evidence in the context of other evidence and found it did not support the complainant’s evidence. In particular, the trial judge noted that the complainant testified that she and the respondent did not engage in inappropriate displays of affection in public. The trial judge’s reasoning with respect to the evidence of this witness makes clear that he did not consider the evidence piecemeal because he considered her evidence in the context of the complainant’s evidence. While the Crown may disagree with the trial judge’s conclusions, his reasons show that he did not consider the evidence piecemeal.
[37] The Crown also argued that the trial judge applied the reasonable doubt standard to an individual piece of evidence because, in considering whether the respondent’s silence in the face of a sexualized text by the complainant constituted an adoptive admission by silence, the trial judge concluded that guilt was “not the only reasonable inference that can be drawn from the [respondent’s] lack of response.”
[38] I do not accept that this reference, when read in the context of the reasons as a whole, shows the trial judge applying the reasonable doubt standard to an individual piece of evidence. The trial judge’s reference to there being other reasonable inferences for the respondent’s silence in the face of the complainant’s text was simply the trial judge explaining why he was not prepared to treat the respondent’s silence in reaction to the text as an adoptive admission. . R. v. U.K.
In R. v. U.K. (Ont CA, 2023) the Court of Appeal considered the leading case of W.(D). on reasonable doubt:(i) The relevant legal principles
[117] The purpose of an instruction on the principles from W.(D.) is to explain to the jury how the reasonable doubt standard and the Crown’s burden of proof applies in the context of conflicting testimonial accounts. The instruction must make clear to the jury that their task is not to decide whether they accept the Crown evidence or the defence evidence, as a binary choice or credibility contest. The instruction is intended to make clear to the jury that they need not believe exculpatory defence evidence in order to acquit an accused, but rather, that they must acquit if the defence evidence (or some portion of it) leaves them with a reasonable doubt: W.(D.), at pp. 757-58; R. v. C.L. 2020 ONCA 258, 387 C.C.C. (3d) 39, at paras. 25-27; R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 106-07.
[118] The principles in W.(D.) extend beyond the evidence of the accused. They apply to other exculpatory defence evidence, and also to evidence favourable to the defence in the Crown case, about which the trier of fact must make credibility findings. In cases where there is exculpatory defence evidence other than the testimony of the accused (or evidence in the Crown’s case which is exculpatory if believed or raising a reasonable doubt), the instruction must be modified to make clear to the jury that it is not necessary for them to believe the evidence in order to acquit; rather, it is sufficient that the evidence (viewed in the context of the evidence as a whole) leaves them with a reasonable doubt: B.D., at paras. 105-14.
[119] It is a basic principle of criminal liability that in a joint trial, the trier of fact must consider the liability of each accused individually. This principle applies to instructions given to a jury on the principles from W.(D.). It is an error for a trial judge in a joint trial to conflate two (or more) accused for the purposes of a W.(D.) instruction: R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at paras. 40, 60, 62; R. v. Parris, 2013 ONCA 515, 300 C.C.C. 3(d) 41, at paras. 77-79 . R. v. V.K.
In R. v. V.K. (Ont CA, 2023) the Court of Appeal considered the leading W.(D.) case regarding criminal reasonable doubt:[12] Nor do we accept the submission that the trial judge erred in articulating and applying W.(D.). When defence counsel raised W.(D.) in closing submissions, the trial judge stated:[O]f course, if I believe the accused, he’s entitled to the acquittal. But even if I didn’t believe the accused, totally, if I disregard his evidence in its entirety, then I still have to look at the remaining evidence, which is essentially the Crown evidence here and be satisfied beyond a reasonable doubt, that the remaining evidence satisfies the test of proof beyond a reasonable doubt. [13] It is clear from this exchange and from his reasons that the trial judge was alive to the test. While his reasons do not cite W.(D.), his treatment of the evidence shows that he understood and applied the relevant principles. He stated that he was satisfied “beyond a reasonable doubt that the Crown [had] made out its case”, explaining that he was convinced of the appellant’s guilt based on a combination of the wife and daughter’s evidence. He also stated that he found the appellant’s evidence to be “uncredible”. . R v. Haist
In R v. Haist (Ont CA, 2023) the Court of Appeal considered authority on assessing reasonable doubt:[26] As this court pointed out in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 39, “[f]undamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused.”
[27] Further, as noted in para. 38 of Lights, “a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence.”
[28] Here, the trial judge gave careful and detailed consideration to the same arguments as made on appeal. A trier of fact, here, “acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole”: Lights, at para. 39.
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