R v CLY: The Soft-Boiled Egg of R v W(D)
Amongst the most difficult cases for the criminal justice system are those where there is no evidence of criminal conduct independent from the victim and where the defence position is simply a denial. Of course, confirmation of the complainant’s evidence is not essential for a conviction, nor does the criminal burden of proof allow for the trial judge to simply prefer the complainant over the accused. While it is entirely possible for a trial judge to convict in such cases where they reject the accused’s denial and accept the complainant’s evidence, how should a trial judge go about the task of determining if the burden on the Crown is discharged? That is the issue that is at the core of this most recent case from the SCC.
It has been seventeen years since a very different Supreme Court of Canada (“SCC”) pronounced the three-step analytical framework to assist trial judges in deciding this issue. Cory J., writing for the majority in R v W(D),  1 SCR 742 [W(D)], held as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, 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.
As R v CLY, 2008 SCC 2 [CLY], demonstrates, some trial judges still don’t get it. Even worse, the majority fails to recognize the pathology of the error committed. C.L.Y. was a teenager charged with three counts of sexual assault. The charges arose out of allegations of inappropriate touching when he was babysitting a girl who was at the time between six and eight years old. The trial judge convicted him of two counts of sexual assault and acquitted of the third charge. The convictions were upheld by the Court of Appeal for Manitoba (Twaddle J.A. dissenting).
The majority at the Court of Appeal rejected C.L.Y.’s argument that when the trial judge considered the evidence of the girl first she had shifted the burden of proof. The dissenting judge concluded that the trial judge’s acceptance of the complainant’s evidence before even considering that of C.L.Y. resulted in a subtle shift of the onus of proof. As of right the issue for the SCC was whether the trial Judge erred in her assessment of the accused’s evidence in light of the criminal standard of proof.
In the result, the SCC was divided on whether the trial judge demonstrably failed to apply W(D), with four of the seven Justices concluding that there was no error. However, all agreed that the basis upon which the trial judge rejected the accused evidence bore no resemblance to the evidence led at trial.
The trial Judge made it clear in her reasons that she understood W(D) in the following language:
… I am acutely aware of the test in W.(D.) and the necessity of not simply preferring one testimony over another.
She then said:
…yet it is difficult to start, other than with an assessment of the complainant’s credibility, as that is the cornerstone of the Crown’s case.
The trial Judge then did exactly what she said she would do, namely assess the complainant without regard to the accused’s evidence. After considering her evidence the trial Judge concluded that she believed the complainant was telling the truth. It follows that unless there is something in what the accused says to persuade her to the contrary, the accused is guilty. That shifts the burden of proof to the accused.
The SCC Majority
The majority did not see it that way; instead, the fact that the trial Judge referred to W(D), acknowledged the leading Manitoba cases on how to deal with a “he said, she said” case (that is, one should not simply prefer one over the other) amply demonstrated that the trial judge understood the test and the fact that the accused bears no burden in a criminal trial. And then, in a rather astonishing move, the majority wrote:
She is presumed to know a principle as elementary as the presumption of innocence.
In the view of the majority if a trial judge can express the correct test (assuming that the presumption is not relied upon) that insulates what the trial judge actually did from appellate review.
Trial judges are duty bound to demonstrate that their understanding of the law is the correct understanding of the law and that they correctly applied the law. The requirement to give reasons requires nothing more or less. This is not only so that there can be meaningful appellate review but so that the parties and society can understand what happened and why. The flaw with the majority’s approach is that they did not analyze how the trial judge applied W(D).
Abella J., writing for the majority, lays it bare:
The trial judge’s reasons reveal that she understood that a finding that the girl was credible did not mean that the onus shifted to the accused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt.
Immediately after this passage Abella J. demonstrates how the order of assessment of evidence is important (albeit in her assessment of the evidentiary support for the trial judge’s rejection of the accused’s evidence). The trial judge, believing the complainant, turned to the accused’s evidence and, not surprisingly, disbelieved him. There was no basis in the evidence to disbelieve him. Abella J. ably reviews the trial judge’s reasons against the evidence on this point and finds her factual conclusions to bear no resemblance to the trial record. In fact, they are so far off the mark that even after a proper allocation for the unique position of the trial judge, the findings could not be sustained.
How does this happen? How can a trial judge make such an egregious error in understanding the evidence? This happens, in part, because the trial judge assessed the complainant’s evidence first. Having concluded that she was telling the truth there was nothing left for the trial judge to do but to determine how to disbelieve the accused. Her belief in the complainant drove the trial judge to misjudge the evidence.
If she had first assessed the accused’s evidence the risk of committing this mistake would be reduced because she would be asking if the accused’s evidence could reasonably be true. If so, that is the end of the matter quite apart from her feelings about the complainant. As well, her assessment of the accused’s evidence would not be infected by her determination that the complainant was telling the truth. The most troubling aspect of this case is that the majority failed to see that the trial judge, in a real way, put the burden on the accused.
What then are we to take from this? The law has not changed, W(D) is the standard on how to apply the criminal standard of proof to credibility. Counsel should remind trial Judges of the error that occurred in CLY in order to focus the trial judge on the evidence that was in fact led, and to remind them that the W(D) formulation will go some distance in disciplining their approach so as to not misapprehend the evidence and thereby wrongly convict the accused.