Supreme Court warns judges on how to handle conflicting testimony

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The Supreme Court of Canada has warned trial judges about dealing with conflicting testimony in a way that doesn’t turn trials into credibility contests the proper legal test is intended to prevent.

In the matter before the Court, Matthew Berg was convicted of sexually assaulting an employee at a hotel he’d checked into and exchanged contact information with. Berg invited her to his room after her shift ended and claimed the sexual activity that occurred was consensual. The trial judge found Berg guilty, based not on the fact that he found the complaint’s testimony more credible, but because of the totality of the evidence, alongside the complaint’s testimony and the corroborating circumstantial evidence. 

Berg appealed on the grounds that the judge failed to resolve the material inconsistencies in the complaint’s testimony and to address her testimony in the totality of the evidence. The majority of the Saskatchewan Court of Appeal found no error in law and dismissed the appeal. However, one dissenting judge felt the trial judge failed to properly address important inconsistencies in the complainant’s evidence, and that the evidence was not properly assessed as a whole.

The Supreme Court of Canada upheld Berg’s conviction and dismissed his appeal. The unanimous decision was released Friday and offered guidance to avoid errors and the improper application of R. v. J.J.R.D., a 2006 Ontario Court of Appeal decision. 

“Reliance on J.J.R.D. has become commonplace for trial judges faced with conflicting testimonial accounts. It is often used to resolve situations where neither of two different testimonial accounts contain any frailties standing alone,” the Court said.

J.J.R.D. was about whether a trial judge’s reasons were detailed enough to allow an appeal court to review the decision. The Court clarified that trial judges should generally not rely on it when assessing an accused’s evidence in a criminal trial or directing the jury.

The proper legal framework for a credibility analysis remains the 1991 Supreme Court of Canada decision in R. v. W.(D)., which set out a three-step analysis for judges weighing credibility in cases where the accused and a Crown witness provide opposing testimony.

“When invoked in a trial setting, J.J.R.D. may mislead the trier of fact to think that they may reject the accused’s account solely based on a ‘considered and reasoned’ acceptance of the complainant’s testimony,” the Court wrote. 

“This raises the spectre of turning trials into credibility contests — the very error W.(D.) was designed to prevent. 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.”

Peter Sankoff, lead counsel at Sankoff Criminal Law in Edmonton and a professor at the University of Alberta, says Berg is a good decision aimed at getting judges to confront the core issue that arises in almost every sexual assault case: who to believe.

“While Mr. Berg loses in this case, that’s solely with respect to how the trial judge decided the case. But the Court, I was pleased to see, recognized the concern of treating the legal idea of  ‘considered and reasoned acceptance’ as being capable of grounding a conviction,” he says.

Sankoff says J.J.R.D. was not meant to give judges a way to ignore their core function in deciding on the basis of all the evidence, and carefully considering the accused’s evidence in particular before convicting.

Berg is “a really useful little case” that will hopefully defuse some of the arguments put to trial judges, Sankoff says, urging them to disbelieve the accused. 

“(The Court) is telling judges not to do that, and that’s very important.”

Beyond that, the case is useful for dispelling a practice that was occurring in the lower courts.

“Judges were using J.J.R.D. as a reason to say we don’t totally disbelieve the accused, so long as we accept the complainant,” Sankoff says. 

“The Court is saying no, that’s not the way it works.”

Melanie Webb, a criminal defence lawyer in Toronto and the chair of the CBA’s criminal justice section, says the decision is an important reminder that a trial judge must adhere to the standard of proof beyond a reasonable doubt.

“Contrary to what a layperson might believe, a trial is not meant to be a credibility contest between an accused and a complainant,” she says.

“You’re not supposed to say that a complainant seemed more credible than the accused.”

However, clients often feel that the jury or the judge is being swayed by a complainant who appears particularly credible and is not shaken in cross-examination. Webb says an accused may feel it’s impossible to prove their innocence, even though it’s never been the law for them to do so. 

“On the flip side of that, I appreciate that some sexual assault complainants probably feel like the trial is not going to lead to a just outcome, because it’s often about attacking their credibility.”

Although the trial judge’s statement that “I reject Mr. Berg’s account because I accept [the complainant’s] testimony” was problematic, the Court noted that a functional reading of the full decision shows the trial judge didn’t engage in a credibility contest.

From a practical perspective, Webb says it remains to be seen whether this will impact trial decisions.

“Perhaps it will result in trial judges being more careful in how they write their reasons.”