Appreciating contradicting testimony: « He said, she said »

Since memory is not infallible, there are situations where the judge must evaluate the credibility of two witnesses providing opposing versions. What rules must the judge abide by in such circumstances?

“It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence.”^[1]

Here is a good example: A.A. c. R., 2021 QCCA 127.

The facts

This case presents a typical application of the principles governing the assessment of contradictory versions, developed by the Supreme Court of Canada in R. v. W.D. The accused was convicted at her trial on charges of assault with a weapon and threatening to kill her young daughter. On the one hand, the accused denies all of the charges against her, while on the other hand, the complainant lists several occasions when she was allegedly abused by her mother.

It is well established that when a court is called upon to assess conflicting versions, it must pay particular attention to the credibility and reliability of each version. According to the trial judge, although the accused testified with “aplomb and a certain emphasis”, he noted several elements which, for him, constituted significant contradictions. After summarily listing a few examples he described as exposing imprecision and improbability in the accused’s testimony, he found her guilty on both counts.

The accused appealed her case, arguing that the trial judge made serious errors in the assessment of the evidence and erred in his application of the law.

The judgement

Regarding the assessment of the evidence, the Court of Appeal found that the trial judge made unreasonable errors in drawing findings of fact inconsistent with the evidence before him. For example, the Court of Appeal considered that the vagueness and contradictions on the basis of which the trial judge found the accused’s testimony to be not credible were secondary to the issue at the heart of the dispute. In addition, according to the Court of Appeal, the trial judge completely ignored certain major inaccuracies in the complainant’s testimony, which should have raised a reasonable doubt. For example, the complainant testified that she told one of her educators that she was beaten, while the educator testified to the contrary.

Regarding the application of the law, the Court of Appeal is of the view that the trial judge erred in his application of the three criteria foreseen in the test set out in R. v. W.D. by comparing the accused’s version to the complainant’s. According to the Court of Appeal, the trial judge merged the second and the third criteria by comparing the testimony of the complainant to that of the accused and choosing which of the two versions was more convincing. This constituted an error of law.

Finally, the Court of Appeal noted that the written reasons of the trial judge were also insufficient to the point of constituting a significant obstacle to the exercise of the right of appeal. According to the unanimous formation of three judges, “the reasons do not adequately answer the questions in dispute, given all of the evidence and the observations of the lawyers, while the judge does not deal with a significant part of the evidence of defense. ”

This is an excellent case to demonstrate that a criminal trial requires a thorough analysis of the evidence that goes beyond a contest of credibility between different versions; it is only through such an analysis that we will be able to preserve the essence of R v. W.D. and to enshrine the presumption of innocence.