Thanks to Judge Wayne Gorman for sending a case that is of interest to Canadian judges, but is equally important for United States judges.

It is never easy for a judge to determine who is telling the truth. We would like to think we have training and experience that gives us unique insight into who is telling the truth but studies have shown that judges are not any better than anyone else in ferreting out the truth.

In R. v. Fleig, 2014 ABCA 97, March 10, 2014, the accused was convicted of the offence of second degree murder in a trial before a judge sitting alone.  The accused appealed from conviction, arguing in part that the trial judge erred in his application of the W.(D.) test in determining if the accused’s evidence raised a reasonable doubt.

The Alberta Court of Appeal indicated, at paragraph 24, that the “primary concern of the framework in W(D) is that a trier of fact should not line up the Crown and defence evidence and select one over the other. W(D) proposes an approach intended to avoid dilution of the presumption of innocence and any shifting of burden of proof from the Crown to the accused. As noted in Vuradin, the “central consideration” is the principle of reasonable doubt.”  The Court held that though W.(D.) “is not to be applied in some mindlessly formulaic manner…a recital of the analysis in W(D) does not necessarily convert flawed reasoning into unassailable reasoning.”

In this case, the Court of Appeal allowed the appeal and ordered a new trial.  It held that the judge’s reasons did “not give assurance that a correct application of the burden of proof occurred.”  The Court of Appeal found error in the trial judge’s reasoning, including his reliance on the accused having a motive to lie because he “had a personal interest in the outcome of the case” (at paragraph 27):

The reasons of the trial judge demonstrate reviewable error in his crucial finding that Fleig’s version was unworthy of belief because Fleig had a motive to lie to extricate himself from guilt. The manner in which the trial judge dealt with Fleig’s motive for untruth was a form of circular reasoning which, at least in this case, cannot withstand scrutiny. He gave pride of place in his reasons to the following finding answering his rhetorical question “do I believe Mr. Fleig when he denies he had anything to do with Mr. Prevey’s murder”:

The answer to this question is no. There are many reasons for Mr. Fleig to be dishonest, not the least of which is that he has a personal interest in the outcome of this case.

The Court of Appeal concluded that though the “motive of any witness to give evidence is always a relevant consideration. It is not error to consider it. But motive to lie is, like demeanour of a witness, a factor that itself should be considered in light of other factors, and in light of the way the case unfolds in evidence and argument. Context is everything: R v Laboucan, 2010 SCC 12 at paras 18 to 22, [2010] 1 SCR 397. Taken entirely by itself, the motive of a person on trial for murder to give false evidence to extricate himself from his legal predicament could be matched with a similar motive to give true evidence if doing so would extricate him from his legal predicament. By itself it is usually a neutral consideration, although that may not always be the case.”