Comments on: R. v. C.L.Y.: The Soft-Boiled Egg of W.D. http://www.thecourt.ca/2008/01/30/r-v-cly-the-soft-boiled-egg-of-wd/ The Court is the online resource for data and debate about the Supreme Court of Canada. Fri, 10 Feb 2012 22:34:40 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Joseph Temple http://www.thecourt.ca/2008/01/30/r-v-cly-the-soft-boiled-egg-of-wd/comment-page-1/#comment-54199 Joseph Temple Mon, 11 Feb 2008 22:05:49 +0000 http://www.thecourt.ca/2008/01/30/r-v-cly-the-soft-boiled-egg-of-wd/#comment-54199 The problem arises from WD in the first place. It is simply wrong to consider the evidence of any witness, including the accused, in isolation. But that is what the first leg of the WD test encourages a finder of fact to do. Secondly, since the accused has the benefit of the presumption of innocence, there can be no occasion to weigh his denial unless the credibility of the witnesses against him is such as to make out a prima facie case. Thirdly, the law presumes that a witness (including the accused) who testifies under oath or upon solemn affirmation is credible, and requires something in evidence to justify discrediting such a witness. Thus: When an accused testifies under oath he is deemed credible unless there is something in the evidence which discredits him. That something can be the evidence of another witness either giving evidence to the contrary or evidence which impeaches the character for credibility of the accused. Where the case to discredit the accused consists only of testimony at odds with his and there is nothing in the character of the accused as witness to justify rejecting his evidence then the question of coroborration becomes all important. On the other hand, if the accused can be proved to have a bad character for credibility then perhaps a credible accuser may be believed beyond reasonable doubt without coroborration. But WD turns the process on its head. It directs the court's attention to the evidence of the accused first, in isolation from the very evidence to which it is a response, and together with which and in light of which it must be weighed. With respect: the proper procedure is to consider the case for the crown to discern whether it has sufficient probative force to make out a prima facie case. Only then, per Proudlock, does the evidentiary burden even pass to the accused to give evidence in reply. Then, if the accused does give evidence in reply, that evidence and the Crown's evidence should be weighed together to determine whether there remains reasonable doubt. Since a verdict of not guilty flows from reasonable doubt, no court need ever concern itself with anything more. The mischief of WD is that it invites a conclusion by the court that it believes the accused's denials before it has even considered the proofs of his quilt. The problem arises from WD in the first place. It is simply wrong to consider the evidence of any witness, including the accused, in isolation. But that is what the first leg of the WD test encourages a finder of fact to do. Secondly, since the accused has the benefit of the presumption of innocence, there can be no occasion to weigh his denial unless the credibility of the witnesses against him is such as to make out a prima facie case. Thirdly, the law presumes that a witness (including the accused) who testifies under oath or upon solemn affirmation is credible, and requires something in evidence to justify discrediting such a witness. Thus: When an accused testifies under oath he is deemed credible unless there is something in the evidence which discredits him. That something can be the evidence of another witness either giving evidence to the contrary or evidence which impeaches the character for credibility of the accused. Where the case to discredit the accused consists only of testimony at odds with his and there is nothing in the character of the accused as witness to justify rejecting his evidence then the question of coroborration becomes all important. On the other hand, if the accused can be proved to have a bad character for credibility then perhaps a credible accuser may be believed beyond reasonable doubt without coroborration. But WD turns the process on its head. It directs the court’s attention to the evidence of the accused first, in isolation from the very evidence to which it is a response, and together with which and in light of which it must be weighed. With respect: the proper procedure is to consider the case for the crown to discern whether it has sufficient probative force to make out a prima facie case. Only then, per Proudlock, does the evidentiary burden even pass to the accused to give evidence in reply. Then, if the accused does give evidence in reply, that evidence and the Crown’s evidence should be weighed together to determine whether there remains reasonable doubt. Since a verdict of not guilty flows from reasonable doubt, no court need ever concern itself with anything more. The mischief of WD is that it invites a conclusion by the court that it believes the accused’s denials before it has even considered the proofs of his quilt.

]]> By: Matthew Shogilev http://www.thecourt.ca/2008/01/30/r-v-cly-the-soft-boiled-egg-of-wd/comment-page-1/#comment-50666 Matthew Shogilev Wed, 30 Jan 2008 20:48:48 +0000 http://www.thecourt.ca/2008/01/30/r-v-cly-the-soft-boiled-egg-of-wd/#comment-50666 What I find striking about the plurality opinion authored by Abella J. is that she seems to infer from the trial judge's acknowledgment of <em>R. v. W.(D.)</em>, that it was duly applied in her reasons. Fish J. by contrast, assumes what in my opinion is a more acceptably critical posture in reading more into the fact that the trial judge, in her reasons, not only considered but appraised the evidence adduced by the Crown prior to considering potentially exculpatory evidence provided by the accused. As a matter of prudence, judge's ought never to appraise inculpatory evidence before, at a minimum, reviewing all exculpatory evidence introduced at trial. I cannot see how it would be possible to remain faithful to the first prong of <em>R. v. W.(D.)</em> formulation without doing so. What I find striking about the plurality opinion authored by Abella J. is that she seems to infer from the trial judge’s acknowledgment of R. v. W.(D.), that it was duly applied in her reasons. Fish J. by contrast, assumes what in my opinion is a more acceptably critical posture in reading more into the fact that the trial judge, in her reasons, not only considered but appraised the evidence adduced by the Crown prior to considering potentially exculpatory evidence provided by the accused.

As a matter of prudence, judge’s ought never to appraise inculpatory evidence before, at a minimum, reviewing all exculpatory evidence introduced at trial. I cannot see how it would be possible to remain faithful to the first prong of R. v. W.(D.) formulation without doing so.

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