Eye On Regulation

• Shauna
  Finlay, Q.Arb

  Shauna
  Finlay, Q.Arb

  view bio

R. v. Berg, 2026 SCC 21

This is a very recent case from the Supreme Court of Canada that addresses considerations of credibility in the context of sexual assault allegations.  Specifically, it provides guidance on how to address circumstances where there are two conflicting testimonial accounts, neither of which contain frailties standing alone.

In Berg, there were two versions of events, one from the complainant and the other from the accused.  It was common ground that the parties had engaged in intercourse – the issue was whether there had been consent to such intercourse.  The accused said yes and the complainant said no.  The trial judge rejected the accused version of events, even though he stated that “he had no reason to reject it in isolation”.  The trial judge then went on to say that he rejected the accused’s account because he accepted the complainant’s testimony.  The Court noted that this statement, standing alone, would be problematic.  This is because when considering two conflicting narratives about an event, it is not necessary that a decision maker conclusively accept one narrative over the other.  In other words, just because one prefers the account of events of one party, does not require the decision maker to dismiss or reject the narrative of the other party.

In this case, the trial judge had analyzed the accused’s account of events based on the totality of the evidence, alongside the complainant’s credible testimony and corroborating circumstantial evidence.  In the end, the trial judge had found the accused guilty on the basis of all the foregoing evidence.  In this way, the trial judge did not convict the accused on the sole basis that he believed the complainant over the accused.  It was the complainant’s credible testimony and other evidence that resulted in the trial judge rejecting the accused’s account of events.  The Supreme Court upheld the conviction. 

The main caution of the Supreme Court’s decision was that a dismissal of one account solely based on acceptance of the other party’s testimony is problematic.

The Berg case did arise in the criminal context where the standard of proof is beyond a reasonable doubt.  In professional regulatory proceedings, the standard of proof is a balance of probabilities.  However, even in this context, credibility is still not an all or nothing exercise.  There may be portions of a party’s testimony that is found to be credible (truthful) and reliable (accurate), but other parts that are not.  The important thing is to be able to explain in a decision why certain aspects were accepted and certain other aspects were not.  Finally, if one party’s testimony is rejected, even thought on its own, such testimony is not problematic, it is important that clear and complete reasons for such findings are set out in the decision.

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