The SCC clarified the application of a landmark Ontario Court of Appeal decision, R. v. J.J.R.D.
In a unanimous decision attributed only to “the court” on Friday, the Supreme Court of Canada clarified that only appellate courts can rely on an oft-cited Ontario Court of Appeal decision for rulings on criminal matters.
The landmark Ontario case, R. v. J.J.R.D., concerned a man who had been convicted at trial for sexually assaulting his young daughter, even though his testimony had no obvious flaws. The trial court reached its conclusion based on its finding that the victim’s testimony and the circumstantial evidence were compelling enough to reject the accused’s account.
Ruling on the accused’s appeal in 2006, the OCA affirmed that the trial court’s line of reasoning was sufficient.
However, the SCC cautioned against applying such reasoning at the trial stage in its brief decision in R. v. Berg on Friday. By relying on R. v. J.J.R.D. at trial, trial judges could be misled “to think that they may reject the accused’s account solely based on a ‘considered and reasoned’ acceptance of the complainant’s testimony,” the high court said.
“This raises the spectre of turning trials into credibility contests,” the SCC continued. “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.”
The SCC added that convictions must always be grounded in proof beyond a reasonable doubt.
R. v. Berg is another sexual assault case, involving a woman who accused a man of sexually assaulting her in his hotel room in Saskatchewan. The man, Matthew Berg, argued that their sexual encounter was consensual.
At trial, a Saskatchewan court convicted Berg of sexual assault. The trial judge said he had no reason to reject Berg’s testimony when he considered it in isolation. However, the judge stated that he rejected Berg’s account because he accepted the complainant’s testimony, citing the OCA’s reasons in R. v. J.J.R.D.
Berg appealed to the Saskatchewan Court of Appeal, arguing that the trial judge failed to resolve inconsistencies in the complainant’s testimony and failed to assess her testimony in the context of all the available evidence. A majority of the appellate court dismissed his appeal.
The SCC agreed with the appellate court’s ruling, orally dismissing Berg’s appeal at a hearing in April ahead of providing reasons on Friday. On its own, the trial judge’s statement that he rejected Berg’s account because he accepted the complainant’s testimony is problematic, the high court said. However, the trial judge’s ruling clearly showed that he analyzed Berg’s account based on all the available evidence and was only then satisfied of Berg’s guilt beyond a reasonable doubt.
The high court noted that the trial judge had drawn on R. v. J.J.R.D. when structuring his so-called W. (D.) analysis. The framework for the analysis used to assess an accused’s credibility in “he said, she said” cases was first laid out in a 1991 SCC decision, R. v. W. (D.).
“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,” the SCC said. The high court added that J.J.R.D. “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.”
In the Saskatchewan case, the trial judge did not use J.J.R.D. “to resolve a credibility contest, and therefore made no legal error,” the SCC said. “However, caution is warranted to ensure that J.J.R.D. is not invoked in a manner that short-circuits W. (D.).”
Brian Pfefferle of Pfefferle Law Office, who represented Berg, told Canadian Lawyer that he disagreed with the SCC’s conclusion that the trial judge “avoided the very danger the Supreme Court has now identified in the trial‑level use of J.J.R.D. to resolve credibility contests.
“From our perspective, the reasons at trial illustrated exactly how a trier of fact can end up rejecting an accused’s evidence simply because they choose to accept the complainant’s account, which is precisely what W. (D.) is meant to prevent,” Pfefferle said. “We believe Mr. Berg should not have been convicted.”
However, the lawyer said he was relieved that the high court clarified “what J.J.R.D. actually means, when it can properly be invoked, and that it is not a trial‑level shortcut to proof beyond a reasonable doubt or a licence to convict solely on a ‘considered and reasoned’ preference for a complainant’s testimony.
“This guidance should halt the gradual erosion of W. (D.) we have seen in recent years and reduce the very real risk of wrongful convictions that arises when criminal trials are reduced to bare credibility contests,” Pfefferle added.
A spokesperson for the Saskatchewan Ministry of Justice and Attorney General did not immediately respond to a request for comment.
