When an accused person testifies in their own defence, the judge must consider the legal test established by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742.  R. v. W.(D.) was about the proper instructions a judge should give to a jury before they begin their deliberations, called a jury charge. The Supreme Court held a proper jury charge where an accused testifies may be:

• First, if you believe the evidence of the accused, obviously you must acquit.
• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

There was recently a case from Winnipeg where Queen’s Bench Justice Chris Martin had to assess the credibility of the witnesses who testified and of the accused. Here is a link to the article: Man found not guilty of gunpoint home invasion. Justice Martin questioned why the stories from the witnesses change so much and he concluded he could not place a lot of value about what they were testifying to in court. As for the accused himself:  "Generally, he cannot be described as a trustworthy individual," said Martin. "I neither believe Mr. Kolba’s alibi evidence, nor does it raise a reasonable doubt." Which means Justice Martin concluded the first and second parts of the test in R. v. W.(D.) were not satisfied. Justice Martin ruled it would be unsafe to believe anyone’s story and acquitted the accused.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.