When it comes to credibility, 'W.D.' rules supreme

Of all the cases in court, there are likely none more difficult than when the only evidence is one person's claim something bad happened, countered by someone else's denial.

Left with only one person's word pitted against another, how is a judge supposed to reach a conclusion? How are we to know who is telling the truth when two (or more) people each swear to tell the truth, yet offer different versions of events?

Well, surprise, surprise, the law believes it has this figured out. There is a system, an analytical method judges are told to use when they ponder witnesses' credibility.

Kick around a courtroom long enough and you will inevitably hear lawyers and judges talk about "W.D.," a reference to a legal decision handed down by the Supreme Court of Canada in 1991.

The high court's decision in that case set out a process judges must follow in cases when one person points the finger and someone else scoffs in denial.

To start with, judges cannot simply prefer one story over another. In other words, they can't point at the parties and say, "I have a hunch. I believe you, and not you, and therefore you are guilty."

Instead, judges must consider what an accused person tells the court. If they decide it's believable, the individual must be found not guilty. It does not matter after that how believable or honest the complainant was or seems, or how nasty their allegations might be. If judges accept the accused person's tale, they must acquit.

Even if they don't believe the accused but their story raises a doubt, judges must still acquit, the Supreme Court of Canada has said.

The last thing judges must do, even if they have determined an accused person is a bald-faced liar and don't believe a word they say, is be sure the Crown's evidence - the version of events offered by the complainant - is strong enough to prove an accused person is guilty.

So how does it work in practice? We got a glimpse this week when provincial court judge Sheri Donegan acquitted a father of uttering threats, assault and dangerous driving.

David Frank Vasil was charged after he angrily confronted a number of Grade 10 bullies at a Sahali bus stop. He believed the teens had been picking on his son.

Six teens called by the Crown told their stories in court, saying Vasil threatened them. One defence witness, another father and one of Vasil's friends, said different.

Judge Donegan said she believed that defence witness and as a result, Vasil was acquitted.

On the surface, it might have seemed this kind of case would have been a Crown slam dunk. Six witnesses against one. Wow. But the law is clear on this one - trials are not a numbers game. More witnesses do not equal better chance of success.

Back to W.D.

Judge Donegan ruled the father who testified for the defence was forthright, honest and fair. The man said he did not see an assault, hear threats or see Vasil drive dangerously. The judge believed what he had to say. As a result, Vasil was acquitted.

There was no reason for the judge to say more, although Donegan did go on to add the testimony of the teens was inconsistent and varied wildly and would not have been strong enough to prove the charges in any event.

Is this kind of approach right? Well, until we develop the perfect lie detector - a machine so infallible no witness can escape its piercing gaze - it will have to be because at its heart, W.D. serves one of the most powerful tenets of Canadian justice.

We are all innocent until proved to be guilty, and accused individuals always get the benefit of legal doubt.

Robert Koopmans covers the courts and legal issues for The Daily News. He can be reached at 250-372-2331, or by e-mail at rkoopmans@kamloopsnews.ca.

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