In R. v. Van Deventer, 2021 SKCA 163, December 15, 2021, the accused was convicted of the offence of sexual assault. In convicting the accused, the trial judge indicated that she accepted the evidence of the complainant [M.S.] as being “reliable” and then said: “The necessary corollary of this conclusion is that I do not believe and I reject Mr. Van Deventer’s denial. Further, in the context of the totality of the evidence, particularly that of [M.S.], I am not left in reasonable doubt by Mr. Van Deventer’s denial”.
The accused appealed form conviction, arguing that “the trial judge erred by shifting the burden of proof to him, by negatively assessing his credibility solely as a consequence of her positive assessment of the complainant’s credibility and reliability”.
The appeal was allowed and a new trial ordered.
The Saskatchewan Court of Appeal indicated that a trial judge “can reject the accused’s evidence on the basis that the complainant’s evidence is accepted to the extent that it leaves no room for reasonable doubt” (at paragraphs 24 and 25):
When an accused’s evidence contains a bare denial of the allegations, a trial judge should consider this denial in the context of the evidence of the complainant and, indeed, the evidence as a whole. As long as the assessment of the entirety of the evidence follows a discernable pathway through the W.(D.) analysis, a trial judge is permitted to examine the credibility of a complainant in their assessment of the accused’s bare denial. An accused’s testimony should not be assessed in isolation at the first stage of the W.(D.) test. In order to properly assess the accused’s denial, a trial judge must be permitted to consider the credibility and reliability of the allegations against the accused. In my view, it would be difficult to determine the credibility of a bare denial without also considering the entirety of the evidence. The evidence of the complainant provides the basis for an accused’s denial, so considering one without the other could often be a pointless exercise.
A finding of credibility and reliability regarding a complainant’s testimony about the alleged conduct can be the reason for rejecting the testimony of an accused, when considered in the context of the entirety of the evidence. As long as a trial judge is mindful of the burden of proof and the principles from W.(D.), they can reject the accused’s evidence on the basis that the complainant’s evidence is accepted to the extent that it leaves no room for reasonable doubt. However, this does not address the issue of whether a finding of credibility and reliability for a complainant leads to the necessary corollary that a trial judge must disbelieve the accused.
However, the Court of Appeal concluded that a new trial was required because the trial judge “fell into error by determining that she was required to reject Mr. Van Deventer’s bare denial once she found M.S. to be credible and reliable in relation to the alleged sexual activity” (at paragraph 29).