The WD Revolution

42 Pages Posted: 4 Oct 2017 Last revised: 27 Aug 2018

See all articles by Lisa Silver

Lisa Silver

University of Calgary, Faculty of Law

Date Written: June 12, 2018

Abstract

The W(D) decision matters. As a paradigm of the core principles of fundamental justice, W(D) has empowered the credibility assessment and given it meaning. From its release in 1991, the essence of the decision, invoked by the case initials, reverberated through the appellate and trial courts and changed the legal landscape. From its modest beginnings as an admonishment to beware of the impermissible “credibility contest,” W(D) radically transformed the everyday to the infra-ordinary by imbedding the presumption of innocence and the inextricably connected reasonable doubt standard into the decision-making analysis. But the revolutionary path has not been easy as the courts struggle with the tension between the “ideal” and the “real.” Yet, W(D) has survived this ordeal to become an essential trial concept. How W(D) has made this not-so “magical” transition is discussed in this paper as we trace the impact of the decision through statistics, case law, the judicial lens and the personal perspective. At the end of this examination, we will see W(D) anew; not as a worn-out overplayed “mantra” but as an invigorating principle representing the plurality of what is at stake in a criminal trial. To apply W(D) is to know it. This paper attempts that very task.

Keywords: Credibility assessment, W(D), Principles of fundamental justice, Presumption of innocence, Reasonable doubt, Standard of proof, Burden of proof, Supreme Court of Canada, Criminal appeals, Grounds of appeal, Appellate review, Empirical analysis of the law, Trial judge, Jury instructions

Suggested Citation

Silver, Lisa, The WD Revolution (June 12, 2018). 41:4 Manitoba Law Journal 307, 2018. Available at SSRN: https://ssrn.com/abstract=3047391 or http://dx.doi.org/10.2139/ssrn.3047391

Lisa Silver (Contact Author)

University of Calgary, Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

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