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The ‘he said, she said’ case: R. v. W.(D.) principles

By Sarah Malik

The “he said, she said” types of cases are argued in courts across Canada every single day. It is quite common in criminal law to come across a case where a judge or jury’s determination of guilt depends on a complainant saying that something happened while the accused is saying that either it did not happen or that it happened differently.

In these types of cases, the determination of guilt is based on the credibility of witnesses in a trial. The leading case law is a Supreme Court of Canada decision of R. v. W. (D.). More than two-and-a-half decades after the judgment was released, the case is still followed by the courts all across Canada. In R. v. W. (D.), the accused was charged with sex assault. Other than the complainant’s testimony evidence, there was little circumstantial evidence. Hence the case relied on credibility.

The Supreme Court of Canada on credibility

The Supreme Court ruled, in a judgment written by Justice Cory, that the correct method of assessing credibility is as follows (at paragraph 11):

“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 judgment by Justice Cory is what is known as the WD test.

The WD test

The WD test assists the triers of fact in knowing how to apply the burden of proof of beyond a reasonable doubt to the issue of credibility. The trier of fact assesses the evidence of a witness in relation to all evidence presented at the trial as a whole. He or she does not assess one witness in a vacuum and cannot ignore any pieces of evidence from consideration. A trial is also not a contest of credibility between witnesses. It is important to be careful not to prefer one testimony to another because that can have an effect of reversing the onus on the accused requiring the accused to disprove the offences. Always remember that the burden of proof is on the Crown to prove the offences against the accused beyond a reasonable doubt.

The WD test largely only applies when the accused gives evidence. However, the WD principles apply in any situation when an issue at trial turns on credibility.

Read More at Toronto Criminal Law Blog

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