Simon's Megalomaniacal Legal Resources

Evidence - Credibility (5)

. R. v. Alhaddad [he said she said]

In R. v. Alhaddad (Ont CA, 2026) the Ontario Court of Appeal considered a 'he said she said' criminal case, where the central evidentiary issue was credibility:

[4] This was a credibility case. The trial judge applied the correct legal principles in assessing the witnesses’ evidence. He found the complainant credible. He had concerns with the appellant’s credibility. He found that his evidence and the evidence as a whole did not leave him with a reasonable doubt. He ultimately found that, in accordance with R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, his acceptance of the complainant’s evidence led him to reject the appellant’s evidence and to conclude that he was satisfied of his guilt beyond a reasonable doubt.

[5] This court owes the trial judge’s findings of credibility significant deference. We are satisfied that any misstatements of the complainant’s evidence were not material to his analysis or to the outcome. In addition, the trial judge was not required to address all inconsistencies in the complainant’s evidence. He grappled with some of these inconsistencies and was satisfied that these were either explained by the fact that English was not the complainant’s first language or were not significant enough to detract from his overall assessment of the complainant’s credibility.

. R. v. Berg [reasons/JJRD/credibility]

In R. v. Berg (SCC, 2026) the Supreme Court of Canada considered the leading JJRD case regarding the adequacy of reasons for decision, and it's interaction with both credibility and reasonable doubt [as in WD] - this in a sexual assault context:

[3] The trial judge rejected Mr. Berg’s account. He noted that he had no reason to reject Mr. Berg’s testimony when considered in isolation. Nevertheless, he went on to state: “I reject Mr. Berg’s account because I accept [the complainant’s] testimony” (A.R., vol. II, at p. 157). This statement would become the subject of much of the debate on appeal and, standing alone, would be problematic. Yet, a functional reading of the trial judge’s reasons clearly shows that he did not engage in a credibility contest by dismissing Mr. Berg’s testimony solely because he preferred that of the complainant. Instead, the trial judge analysed Mr. Berg’s account based on the totality of the evidence, alongside the complainant’s credible testimony and the corroborating circumstantial evidence, and only then was satisfied of Mr. Berg’s guilt beyond a reasonable doubt.

....

[6] We write to provide guidance on, and correct potential errors that may arise from, the application of the principles flowing from the Court of Appeal for Ontario’s decision in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37. 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.

[7] J.J.R.D. involved a claim of insufficiency of reasons. In that case, the trial judge convicted the accused, even though his testimony had no obvious flaws standing alone, because the complainant’s testimony and the circumstantial evidence were sufficiently compelling to reject his account. On appeal, Doherty J.A. explained that the trial judge’s line of reasoning was adequate and permitted effective appellate review. In a now oft-cited passage, at para. 53, he observed:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[8] The trial judge in this case drew on this passage in structuring his W. (D.) analysis and rejecting Mr. Berg’s testimony (R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742). The dissenting justice at the Court of Appeal held that the trial judge failed to abide by J.J.R.D. and erred by rejecting Mr. Berg’s testimony without a “considered and reasoned acceptance” of the complainant’s evidence.

[9] As a general rule, trial judges should not rely on J.J.R.D. when structuring their W. (D.) analyses or when providing W. (D.) directions to a jury. J.J.R.D. is a case about appellate review for sufficiency of reasons and it does not purport to set out a formula for performing a W. (D.) analysis. It was intended to apply to appellate review of trial decisions when assessing whether the trial judge’s reasons were sufficient to permit appellate review, not to be applied by trial judges themselves. We agree with Paciocco J.A. in R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at para. 32, when he observed:

.... D. (J.J.R.) was a sufficiency of reasons case. It was not a jury instruction case, nor even a case about the content of the W. (D.) formula. The issue was whether the reasons given by a trial judge, sitting alone, were sufficient to permit effective appellate review: see D. (J.J.R.), at paras. 1-2. That is why Doherty J.A. describes “a considered and reasoned acceptance . . . of the truth of conflicting credible evidence” as an “explanation for the rejection of an accused’s evidence”. The case is about whether the trial judge explained the conviction by offering a considered and reasoned basis . . . . It does not purport to offer a formula for overcoming facially unassailable exculpatory evidence. [Emphasis deleted.]

[10] 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.[1] 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 (W. (D.), at p. 757; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9).

[11] Instead, a conviction must always rest on proof beyond a reasonable doubt. And proof beyond a reasonable doubt demands more than a “considered and reasoned acceptance” of the complainant’s evidence. Indeed, in J.J.R.D., Doherty J.A. was characteristically careful in his formulation: a trial judge can reject an accused’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” (para. 53 (emphasis added)). Read in full, this passage maintains that appellate courts should ensure that trial judges have considered the conflicting evidence — whether it is only the complainant’s testimony or also includes circumstantial evidence — and explained why it meets the high standard of proof beyond a reasonable doubt. It is not, by contrast, an invitation for trial judges to enter convictions solely based on a “considered and reasoned” acceptance of a complainant’s testimony.

[12] In this case, the trial judge did not use J.J.R.D. to resolve a credibility contest, and therefore made no legal error. However, caution is warranted to ensure that J.J.R.D. is not invoked in a manner that short-circuits W. (D.). Accordingly, the appeal is dismissed.

. R. v. Vannoordennen

In R. v. Vannoordennen (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "two counts each of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), sexual assault (s. 271), and making child pornography[2] (s. 163.1(2)), as well as single counts of invitation to sexual touching (s. 152) and sexual exploitation (s. 153(1)(a))".

Here the court considers the propriety of the Crown asking "an accused person to comment on the credibility of their accuser(s)":

[33] I agree with Mr. Socka for the appellant, that this line of questioning was improper. The Crown is not permitted to call upon an accused person to comment on the credibility of their accuser(s): R. v. D.M., 2022 ONCA 429, 162 O.R. (3d) 444, at paras. 68-69; R. v. G.H., 2020 ONCA 1, 61 C.R. (7th) 365, at paras. 24-25. One of the main reasons for this rule is that it tends to shift the burden of proof to the accused person and undermines the presumption of innocence. It was open to the Crown to make submissions to the trial judge about whether J.H. appeared sympathetic or compassionate in relation to the appellant, but the appellant’s opinion on it was not probative of anything.

. Okafor v. Ontario College of Teachers [tribunal]

In Okafor v. Ontario College of Teachers (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a teacher's appeal [under s.35(1) of the Ontario College of Teachers Act], here brought against "the decision of the Discipline Committee of the Ontario College of Teachers .... which found her guilty of professional misconduct ..." and from "the Discipline Committee’s penalty decision ... that ordered ... a five-month suspension, and costs in the amount of $60,000.00".

Here the court considers the potential role of self-interest in the assessment of credibility:

[59] The Appellant submits that the Discipline Committee erred in law in placing undue weight on her interest in the outcome when assessing her credibility.

[60] In R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, Charron J. stated at paras. 11-18:

[11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’s testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility.

[12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome.

....

[14] In most cases, I would agree with counsel that this factor is simply unhelpful and, as a general rule, triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal. However, I would not adopt an absolute rule as proposed, for the following reasons.

[15] An absolute rule prohibiting the trier of fact from considering that an accused may have a motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidence that provide special protection to the accused. ...

[16] An absolute rule as proposed would also be contrary to established principles of appellate review. It should now be regarded as trite law that a trial judge’s reasons should be read as a whole, in the context of the evidence, the issues and the arguments at trial, together with “an appreciation of the purposes or functions for which they are delivered”

...

[18] … At the end of the day, the determining question is whether the trial judge’s comments undermined the presumption of innocence. [Citations omitted.] [Emphasis in original.]

[61] Although Laboucan is a criminal case, the same logic applies to someone accused of professional misconduct. Accordingly, whether the Discipline Committee erred in law by noting that the Appellant had an interest in the outcome of the hearing in the context of assessing her credibility requires that this comment be considered in light of the entire decision.