• 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