R. v. Berg

Reasons for Judgment — The Court

1The appellant, Matthew Berg, was convicted of sexual assault. He appeals as of right from a decision of the Court of Appeal for Saskatchewan. At the end of the hearing before this Court, we dismissed his appeal and ordered Mr. Berg to surrender himself into custody, with reasons to follow. These are our reasons.

2The main issue before the trial judge was whether the complainant consented to sex with Mr. Berg. Both testified at trial and it was common ground that the sexual activity in question included sexual intercourse. The complainant said she did not consent to the sexual activity and Mr. Berg forced himself on her. He claimed that the entire encounter was consensual.

3The 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.

4A majority of the Court of Appeal for Saskatchewan dismissed Mr. Berg’s appeal. There, Mr. Berg argued that the trial judge made two reversible errors. First, the trial judge failed to resolve material inconsistencies in the complainant’s testimony. Second, he failed to assess the complainant’s testimony in light of the totality of the evidence and erroneously used it to reject Mr. Berg’s account. Mr. Berg now raises the same two issues before this Court.

5On the merits of the two issues raised by Mr. Berg, we substantially agree with the reasons of the majority of the court below. The Court of Appeal convincingly explained how the trial judge convicted Mr. Berg based on proof beyond a reasonable doubt. We need not discuss these issues further.

6We 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), 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.

7J.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:

8The 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] 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.

9As 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:

10When 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).

11Instead, 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.

12In 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.