Background
The appellant was convicted of one count of sexual assault following a trial in the Ontario Court of Justice. The complainant, a 16-year-old with autism and other cognitive and emotional vulnerabilities, alleged that the appellant — a 35-year-old man who had been in a relationship with the complainant’s aunt and served as a trusted older figure in the complainant’s life — performed a sexual act on him during an overnight visit at the appellant’s home in August 2017. The complainant did not disclose the incident until December 2019, following a conversation with his aunt about internet predators and a visit in which the appellant allegedly asked the complainant if he wanted to “do it again.”
The appellant, who testified in his own defence, denied the sexual act occurred. His credibility was significantly damaged at trial: he made statements to police that he later walked back, and the trial judge found his testimony riddled with contradictions, inconsistencies, and deliberate deception. Defence counsel at trial, while attacking the complainant’s evidence, acknowledged his own client had been a poor witness and expressly stated — albeit in ambiguous terms — that the case did not “turn on prong 3” of the W.(D.) framework.
The trial judge found the appellant guilty, accepting the complainant’s evidence and the supporting testimony of the complainant’s aunt and mother. He relied heavily on his adverse credibility findings against the appellant, describing him in unusually strong terms as “devious,” “deceitful,” and a “prevaricator.” The appellant appealed on the ground that the trial judge misapplied the three-step W.(D.) credibility test and used disbelief of the appellant’s testimony as a makeweight for guilt.
The Court’s Holding
The Court of Appeal allowed the appeal and ordered a new trial. Writing for a unanimous panel, George J.A. held that the trial judge committed a reversible error by misreading defence counsel’s closing submissions. When defence counsel stated the case did not “turn on prong 3” of R. v. W.(D.), [1991] 1 S.C.R. 742, he had misspoken: read in context, his submissions plainly conceded only the first two prongs (that the appellant’s evidence was not believed and raised no reasonable doubt on its own) while arguing the Crown had not proven guilt beyond a reasonable doubt on the evidence it did accept — i.e., the third prong. The trial judge mistakenly treated this as a full concession of all three prongs, concluding the appellant had “exhausted” the W.(D.) framework and “should be convicted.”
The court found that this foundational misapprehension infected the entire W.(D.) step-three analysis. Rather than confining the inquiry to whether accepted evidence established guilt beyond a reasonable doubt, the trial judge continued to dwell extensively on the appellant’s credibility deficiencies under the step-three heading and treated his disbelief of the appellant’s testimony as an affirmative makeweight supporting guilt — a recognized error under W.(D.). The Crown’s argument that the appellant’s police-statement contradictions could independently support an inference of deliberate fabrication was rejected; the trial judge had not applied the relevant legal principles for such a finding, and no independent evidence of fabrication of trial testimony had been identified on the record.
The court further noted that the trial judge failed, in his step-three analysis, to grapple with several weaknesses in the complainant’s evidence — including the complainant’s shifting explanation for why he disclosed the allegation, and the fact that the description of the appellant “biting” his penis was raised for the first time at trial. These omissions reinforced the conclusion that the step-three analysis lacked the necessary objectivity and rigour, requiring a new trial.
Key Takeaways
- Under R. v. W.(D.), a trial judge’s disbelief of an accused’s testimony cannot itself be used as evidence of guilt; step three requires an independent assessment of whether the accepted evidence proves guilt beyond a reasonable doubt.
- Trial judges must carefully parse defence closing submissions before treating anything as a concession — particularly on a foundational framework like W.(D.); a misreading of counsel’s position that narrows the analysis at the outset can taint the entire verdict.
- A finding of deliberate fabrication capable of supporting guilt requires independent evidence beyond mere internal inconsistencies in trial testimony; the bar is higher for trial evidence than for out-of-court statements.
- Even where an accused is a manifestly poor witness, the step-three inquiry must still address identified weaknesses in the Crown’s evidence; failing to engage with those weaknesses is itself an error warranting appellate intervention.
Why It Matters
This decision reinforces the enduring importance of W.(D.) as a structural safeguard against convictions driven by adverse credibility findings rather than proof beyond a reasonable doubt. Courts have repeatedly affirmed that a jury or judge may disbelieve an accused entirely yet still be required to acquit if the Crown’s evidence falls short — and R. v. R.N. illustrates how easily that principle can be undermined when a trial court conflates the three prongs or treats disbelief as a form of inculpatory evidence.
The case is also a practical reminder for defence counsel: ambiguous or self-contradictory closing submissions about the W.(D.) framework can create a record that is difficult to correct on appeal, even where — as here — the Court of Appeal ultimately concluded the misstatement was obvious from context. That the appellant must face a new trial, rather than an acquittal, underscores that a successful W.(D.) ground of appeal corrects the process, not necessarily the outcome.