In the face of contradictory accounts of events, judges or juries may become distracted by thoughts of “Which version should I believe?” rather than staying focused on whether they have a reasonable doubt as to the accused’s guilt after considering all of the evidence. 

The correct approach to decision-making in a case that turns on credibility does not simply involve picking one account over another. It is a legal error for a judge or a jury to decide a criminal case by making an ‘either/or’ choice between the evidence of a complainant and the evidence of an accused.

The starting point for guidance on the proper application of proof beyond a reasonable doubt in the face of conflicting accounts, and the associated common pitfalls in reasoning, is the Supreme Court of Canada’s landmark case of R. v W.(D.), [1991] 1 S.C.R. 742, which will be examined in detail in future posts. 

Whether assessing the merits of an appeal of a judge’s decision or providing input on a pending jury instruction, criminal counsel must be well versed in this area of law to ensure that their clients receive a fair trial with a proper application of the standard of proof.

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