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  • Lewis Waring

The Important Role of the Trial Judge - Mackenie Cardinal

One of the most important aspects of a trial is witness testimony. The entire trial system in Canada is based upon an “oral tradition”, meaning that most of the evidence that is heard at trial comes as a result of witness testimony. When evidence is adduced at trial, the trier of fact must decide what evidence will be given weight. In other words, the trier of fact must decide what evidence it will accept as accurate and subsequently use to come to a decision regarding the issue at bar. When coming to this decision, the trier of fact relies on two things in particular: the honesty of the witness in relation to their testimony (i.e., credibility of the witness) and the accuracy of the testimony that is given by the witness (i.e., reliability of the witness).

The strength of the credibility and reliability of the witness can be determined from the other material evidence that is provided at trial. As Paciocco and Stuesser put it, “[t]he range of information that may conceivably assist in credibility and reliability evaluation is exceedingly broad, since learning anything about the quality of the witness’s memory, attentiveness, experience or honesty can help”. Obviously, the way that this process plays out is unique to each specific trial; the recent case of Gold, which was heard on appeal in the Manitoba Court of Queen’s Bench (“the MBQB”), however, provides a very interesting insight into how a trier of fact parses through conflicting witness testimony and other evidence in order to reach a decision.

Before continuing on with our look into the legal issues that were raised in R v Gold (“Gold”), we must first establish the circumstances surrounding the case. Gold is a very unique case in the sense that it centres around an internal conflict that took place between two Winnipeg Police Service (“WPS”) officers in the course of their work. Gold, while he was a member of the WPS, had on two separate occasions—in May 2016 and again in November 2016—pointed his service weapon at another officer, Constable Prefontaine. The first incident took place in the parking garage of the WPS building, while the second incident occurred in the typing room of WPS headquarters. During both incidents, Gold made comments towards Prefontaine such as, “[b]oom, right in the crotch” and “I know what you need”. In addition to the egregious and shocking unprofessionalism shown here by a member of the WPS, pointing a firearm is a criminal offence under section 87(1) of the Criminal Code (“the Code”). At trial, Justice Thompson found Gold guilty of this offence in relation to the second incident that had occurred in November 2016. However, Gold was acquitted for the first incident that occurred earlier that year in May.

In coming to this decision, Justice Thompson said that the evidence given by Constable Prefontaine in regard to the May incident was not sufficiently reliable. As Justice Thompson explained, this primarily stemmed from the fact that Constable Prefontaine had only reported the May incident following the second incident which occurred in November. As for the November incident, Justice Thompson accepted the evidence provided by Constable Prefontaine as credible and reliable. Meanwhile, Gold’s evidence was found to be insufficient towards raising a reasonable doubt.

Gold appealed the decision under section 813(a)(i) of the Code. In total, he raised five issues. All of the issues raised on appeal were dismissed by Justice Turner. The first three of these issues centered around how a judge assesses credibility and reliability when hearing evidence. These three issues were:

  • whether the trial judge incorrectly assessed the credibility and reliability of Constable Prefontaine’s evidence between the two incidents;

  • whether the judge erred in applying the case of R v W(D) [1991] (“DW”) and failed to give Gold the benefit of a reasonable doubt while assessing his credibility; and

  • whether the trial judge made findings of fact or drew inferences that were not supported by the evidence.

While the appeal in itself was pretty straightforward with regard to the decisions made, it is the opinion of this paper that Gold is a very good case for highlighting the important role that the trial judge has in the justice system.

The Important Role of the Trial Judge as Illustrated in Gold

Gold is an especially useful case for showing how the trial judge is in a very unique position where they can interact directly with and observe the parties involved in the case. The importance that this human aspect can have on determining what evidence is to be accepted while at trial should not be underscored. It is very rare that a court will be able to have a clear picture of the facts and, in many cases, there will be inconsistencies in the evidence. Therefore, it is up to the judge to use their analytical skills and a bit of common sense to resolve these inconsistencies. This was evident in Gold, as it was noted by Justice Turner that, when Justice Thompson was writing his reasons as to why he found Constable Prefontaine’s evidence both credible and reliable, he expressly mentioned her demeanour and how it enhanced the credibility of her evidence. This ability to physically see the witnesses is a luxury not afforded to the appellate courts. As Kapoor aptly put it, the analysis that a trial judge partakes in to sort through the evidence is “…a tremendous responsibility, and one that appellate courts understand and respect”.

In Gold, it is clear that Justice Turner showed a great deal of respect for Justice Thompson and the decisions he made at trial. It even appeared that Justice Turner was sending a message to Gold that the decisions of the trial judge must be taken extremely seriously. For example, before beginning her analysis, Justice Turner emphatically stated the importance of the trial judge, writing that trial judges are “ [in a] preferable position of being able hear directly from witnesses…and observe their demeanour while doing so”. As well, Justice Turner also outlined the support that must be shown to the decisions of the trial judge, writing that “[t]he trial court is not inferior to an appellate court”. Justice Turner also outlined that the higher courts have also ruled strongly on the level of deference that must be shown to the decisions of trial judges. As cited by Justice Turner, both the Supreme Court of Canada (“the Court”) (in both Beaudry and Nikolaisen) and the Manitoba Court of Appeal (“the MBCA”) (in Jovel) have ruled that a trial judge’s findings on the credibility of evidence should only be overturned in situations of the most egregious errs in judgement. In Gold, Justice Turner found nothing of the sort in the findings that Justice Thompson had made at trial, stating for each ground of appeal that the decisions reached by Justice Thompson at trial were reasonable and thus they should be shown the utmost deference.

For instance, Gold was making his appeal in part because of the fact that there was an inconsistency between the way in which Constable Prefontaine described the May incident when reporting it to another officer versus the way that she described it to the Professional Standards Unit. Gold took the view that this inconsistency effectively proved that Constable Prefontaine had fabricated her story. Justice Thompson, at trial however, chose to reject this argument, instead finding on the evidence that Constable Prefontaine had tried to move past the first incident and it was only when the second incident occurred that she felt the need to report it. Thus, at the time she made the report, the first incident was already six months old; meanwhile, the second incident had happened mere days earlier. According to Justice Thompson, this was sufficient to explain the inconsistency in Constable Prefontaine’s evidence. On appeal, Justice Turner took no issue with the inference that was made by Justice Thompson, stating that this was an, “inference and a conclusion that were available to him…[I]t’s a finding that is owed significant deference” (emphasis added).


As shown throughout this appeal, the trial judge is in a very advantageous position in the legal system. Their ability to interact with those who are providing evidence gives them a perspective that cannot be had when the case is on appeal. As Justice Turner appeared to show in this appeal, and as this blog has attempted to show, this advantageous position that a trial judge finds themself in requires that their findings be given the upmost respect. It should be mentioned briefly that this is not to say that the appeal courts do not fulfil an important role and should never interfere with a finding from the trial judge. Rather, the unique and important role that a trier of fact plays at trial must be acknowledged.


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