The ‘He said, She said” situation in Canadian Criminal Law

Many cases of assault and sexual assault will hinge on a complainant saying that one thing happened, while the accused testifies that it happened in a different way, or didn’t happen at all. How does the Judge decide who to believe? How does the Judge make their decision?

In 1991, the Supreme Court of Canada released a decision in the case referred to as Regina v. W(D). The court considered the situation where an accused gave evidence that could give rise to a defence. In this decision the Supreme Court said that a judge need not weigh one story against the other. Instead a Judge must assess the credibility of the witnesses and then go through a three part test to decide on a verdict.

The first part of the test for the Judge is to decide if they believe the evidence of the accused (and it forms a defence), they must acquit.

The second part of the test for the Judge asks, if (the Judge) does not believe the evidence of the accused, but is left with a reasonable doubt, they must acquit.

The third part of the test asks the Judge to consider that even if they are not left with a doubt by the evidence of the accused, they must be convinced beyond a reasonable doubt by the evidence they did accept, that the alleged offence occurred.

Twenty-five years later, this case is still followed by courts all across Canada in determining verdicts of accused persons.