Burden of Poof – Credibility – Which Story to Believe?

By: Justin Yuen

Despite the notions that Trials are a fact-finding mission, more often than not a Judge will conclude a Trial without ever establishing the truth. In the context of Criminal hearings, it is important to remember three essential principles. The presumption of innocence, and that the Crown always bears the burden to prove the guilt of the accused beyond a reasonable doubt, and above all, the right to a fair trial.

Consider this scenario:

Bob reports to the Police that Alex punched him in the face. Consequently Alex is charged with assault. At his trial Alex testifies that he only punched Bob, because Bob had threatened him and was running at him with his fist raised, any of his actions were in self-defence. Bob testifies that Alex punched him out of the blue as he was walking by.

The common misconception is that the Judge is a fact-finder and has to pick who is in fact telling the truth. In reality, Criminal Trials are not this straight forward.

Commonly coined as ‘he-said, she-said’… what does a Judge consider when balancing the two different stories?

The Supreme Court of Canada in R. v. W.D., [1991] 1 SCR 742 set down a three part test to consider when dealing with the credibility of two differing version of events. Judges must adhere to W.D. to determine whether guilt has been proven beyond a reasonable doubt and a safe conviction can follow.

• If you believe the evidence of the accused, obviously you must acquit;

… If the Judge believes Alex, then the Judge must acquit

• If you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit;

… If the Judge does not believe Alex’s testimony, but is left in reasonable doubt by the conflicting version of events, then the Judge must acquit

• Even if you are not left in doubt by the evidence of the accused, you still 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.

… If the Judge is not left in doubt by Alex’s testimony, the Judge must still consider whether or not the evidence he does accept is able to convince himself/herself beyond a reasonable doubt of guilt

In the above scenario, if that were the evidence in its totality, the Judge would likely acquit Alex.

The result of a Criminal Trial is rarely what a complainant or defendant imagines, whether it be “put him away for a very long time” or “the Judge will say I’m innocent and vindicate me”… the reality is there is a disconnect between what a layperson believes will occur, and the ultimate determination of a case.

A verdict of acquittal doesn’t necessarily mean nothing happened, and there was no wrongdoing. More often than not, a Judge can and often does go well beyond that realm and discuss what they in fact believe happened, or that they don’t believe the story of the accused… however, Judges will bear in mind that the accused benefits both from the presumption of innocence and reasonable doubt, as such in some occasions tilting the decision in the Accused’s favour.

The Presumption of Innocence is entrenched in our Charter Rights, in a Criminal Trial the accused never has to convince a Judge of their innocence. To the contrary, the Crown Attorney bears the burden of proving beyond a reasonable doubt that in fact the accused is guilty. In the modern age of social media and reporting the Presumption of Innocence has begun to be severely eroded.

Some movements go beyond the call for the equality and protection of vulnerable complainants, and urge society to put more weight in their stories, because of their courage to speak out. This blog does not dispute the need for safeguards, in fact there should be sufficient implementation of methods to provide every individual with a safe and comfortable environment to raise any kind of wrongdoings that they have endured. However, the current climate of hashtagging and persecution via the twittervese gravely erodes the presumption of innocence and the right to a fair trial.

The role of a Defence Lawyer is to advocate and ensure that every individual receives a forum of due process and to have allegations tested, the preservation of a right to a fair trial. More often than not, our role is confrontational to populace opinion, we stand in between the allegations and the foregone media sensationalized conclusion of guilt. Our role at times is truly unenviable, but nonetheless it is our calling.

The Criminal Justice System is most effective and safest when there are both experienced Prosecutors and Defence Lawyers advocating for their respective positions in a Court of Law. Only then will the process truly be fair and the conviction or acquittal, the just conclusion.