R v WH: Incorrect Assessment of a Jury’s Verdict Regarding the Credibility of a Witness
In 2013, the Supreme Court on Canada (“SCC”) in R v WH,  2 SCR 180 [WH, SCC], ruled that the Newfoundland and Labrador Court of Appeal (“NLCA”) applied an incorrect test for reviewing a jury’s decision and, in carrying out its review of the jury’s verdict, failed to give sufficient deference to the jury’s assessment of witness credibility (WH, SCC, para 35). As such, Cromwell J allowed the appeal and reinstated the conviction entered at trial (para 49).
In upholding the decision of the trial judge (Dunn J), the SCC made important assertions about the test for assessing the reasonableness of a jury verdict as well as the need to exercise great deference to the fact-finding role of the jury.
Trial Judge’s Instructions to the Jury
Dunn J gave the usual instructions with respect to credibility and truthfulness of the witnesses, including the direction that the jury could believe or disbelieve all or some parts of any of the witnesses’s testimony. Dunn J also instructed the jury to be mindful of the age of the complainant and instructed the jury that they should consider this factor along with the lapse of time in dealing with minor discrepancies in the complainant’s testimony. Additionally, Dunn J stressed the fact that this case was about credibility and noted that there was no other direct evidence supporting the complainant’s allegations. Furthermore, Dunn J gave thorough summaries of the evidence, as well as summaries of the arguments put forward by both the Crown and the defence.
The jury returned a verdict of guilty on both counts. The trial judge entered a conviction of sexual assault, but stayed the sexual interference count because it was based on the same factual and legal foundation.
In R v WH, 2011 NLCA 59 [WH, NLCA], the NLCA found that the jury’s verdict was unreasonable, and set the verdict aside and acquitted W.H. (WH, NLCA, para 77). The court stated that in conducting a review for unreasonableness, an appellate court should determine whether an experienced trial judge could give adequate reasons to explain the finding of guilt (para 47). If not, then the verdict is unreasonable (para 47).
The court was troubled by a number of inconsistencies of the complainant’s testimony and statements. First, there were inconsistencies as to the number and nature of the incidents between the complainant’s trial evidence and her initial disclosure (para 66). Second, the court had a “serious concern about [the complainant’s] truthfulness overall” (para 67). Third, the fact that the complainant, in her initial statement to the male police officer, stated that W.H. had been alone in the house when he assaulted the complainant. However, later, the complainant stated that W.H.’s wife had been in the house (para 68). Fourth, there were inconsistencies regarding the complainant’s nervousness about being alone around W.H. (para 71).
After reviewing the record, the court concluded that
[a]n experienced judge sitting alone, with the evidence presented in this case, would not be able to provide adequate reasons to explain how he or she could be convinced beyond a reasonable doubt of the accused’s guilt in light of the credibility concerns arising from the unexplained inconsistencies and improbabilities arising from the complainant’s testimony and statements (para 75).
Correct Test for Assessing the Verdict of a Jury
As stated in s. 686(1)(a) of the Criminal Code, RSC 1985, c C-46, the review of a jury’s verdict by an appellate court is warranted when the verdict is unreasonable. A verdict is unreasonable or cannot be supported by the evidence, according to the SCC in R v Yebes,  2 SCR 168 [Yebes], “if it is one that a properly instructed jury acting judicially could not reasonably have rendered” (WH, SCC, para 26, citing Yebes, 185). While the same test was historically applied to verdicts by both juries and trial judges, the SCC in R v Beaudry,  1 SCR 190 [Beaudry], and R v Sinclair,  3 SCR 3 [Sinclair], expanded on the existing scope of review for unreasonableness in cases of verdicts reached by juries. Under this new test, appellate review of a jury’s verdict of guilt must be conducted within two well-established boundaries.
First, according to Cromwell J, “the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded” (WH, SCC, para 27). As such, the reviewing court “must not act as a ‘13th juror’ or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record” (para 27).
Second, however, the review cannot be limited to assessing the sufficiency of the evidence. According to Cromwell J, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence and consider through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the jury” (WH, SCC, para 28, citing R v Biniaris,  1 SCR 381, paras 36 and 39 [Biniaris]).
As such, the court must ask whether there is sufficient evidence to support the verdict, as well as whether the jury’s conclusion conflicts with the bulk of the judicial experience (WH, SCC, para 28, citing Biniaris, para 40).
Did the NLCA Err in its Conclusion?
According to Cromwell J, “the Court of Appeal in this case applied the wrong legal test and, in carrying out its review of the jury’s verdict, failed to give sufficient deference to the jury’s assessment of witness credibility” (WH, SCC, para 35).
In assessing the verdict of the jury, the NLCA incorrectly adopted a new approach by drawing on the law relating to the sufficiency of a trial judge’s reasons for conviction. The NLCA concluded, “[i]f no reasonable process of analysis by a judge could justify conviction in the circumstances of the case, an appellate court will be justified in concluding a jury must not have been acting judicially in convicting” (WH, NLCA, para 52). In doing so, according to Cromwell J, the NLCA did not act in accordance to binding authority (para 38).
Since the NLCA is bound by any decision made by the SCC, the NLCA should have applied the test for assessing jury verdicts as outlined in Beaudry and Sinclair, rather than the test for assessing the reasonableness of a trial judge’s conclusion.
Cromwell J found that the NLCA’s approach was fundamentally flawed since it did not give sufficient deference to the jury’s findings. According to Cromwell J, “[o]ne of the main drivers of the great deference paid to the jury’s findings of credibility is that the jurors were present at the trial and saw and heard the evidence as it unfolded” (para 39). An appellate court, on the other hand, is not present. Therefore, the NLCA attempted to fashion an explanation for the jury’s decision based only on written record (para 40). In doing so, the NLCA “ignore[d] both the inherent difficulty of [attempting to perform such an] exercise and the main basis for deference to the jury’s assessment of witness credibility” (para 40).
With respect to the assessment of the witness’s credibility, Cromwell J outlined three failures of the NLCA. First, the NLCA discounted potentially significant elements of the evidence for why the complainant’s testimonies were inconsistent, such as the potentially intimidating police station setting, the use of a male interviewing officer, the presence of the complainant’s mother, etc. Cromwell J reasoned that it would have been entirely reasonable for a jury to give more weight to these reasons then an appellate court (para 44).
Second, in discounting the complainant’s explanation for the inconsistencies, the NLCA “engaged in speculative reasoning that has no basis in judicial experience” (para 45). The NLCA reasoned that while discomfort may help explain the inconsistencies in the complainants testimonies, “they do not adequately explain her express denial that any other incidents had occurred” (WH, NLCA, para 66). In response to this, Cromwell J concluded that he has no knowledge of any basis in fact or judicial experience that would warrant the view of the NLCA that the discomfort of a witness during an interview may explain some types of inconsistencies but not others (WH, SCC, para 46).
Lastly, Cromwell J concluded that the NLCA “wrongly substituted its views for those of the jury” (para 47). In doing so, the NLCA ignored the disadvantages of an appellate court in relation to the findings of a jury, and undermined the jury’s unique position and role in assessing witness credibility (para 47).
As such, the NLCA erred by applying the wrong legal test and by failing to take a deferential approach in relation to the findings of credibility made by the jury.