The Court Martial Appeal Court of Canada's decision in Houde v. H.M. The King, 2025 CMAC 2 (Guy Cournoyer, J.A.), finds instructional error where the military judge told the members that the complainant's credibility would be determinative. Excerpt:
Main issue: [the complainant’s] credibility
Introduction
1. In my view, the main issue you will have to determine during your deliberations relates to the credibility you will give to the testimony of the prosecution’s only witness, the [complainant]. If you believe the witness’s testimony, it should not be very difficult for you to answer the questions I will list later on concerning the essential elements of the offences.
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After considering the general principles that were previously explained—the presumption of innocence, the burden of proof, the assessment of the evidence, the application of reasonable doubt to the credibility issue—and after considering the accused’s testimony in light of the analytical framework described, you will be able to arrive at a finding on the credibility of the [complainant’s] testimony and on the facts she has related.
[39] These instructions are highly problematic. They direct the panel’s attention to only one issue: the complainant’s credibility. As a result, these instructions explain to the panel that if it believes the complainant, the appellant must inevitably be found guilty because the panel [translation] “will not find it very difficult” to answer questions [translation] “concerning the essential elements of the offence.”
[40] It should be recalled that although a complainant’s credibility is important, it is not the main issue during a criminal trial. The issue at the end of a trial where contradictory versions were presented is not “credibility, but reasonable doubt”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 65; R. v. S.B., 2023 ONCA 784 at para. 59; Wilson v. R., 2013 NBCA 38 at para. 36, A.1; R. v. C., 2004 NSCA 135 at para. 19; R. v. Mah, 2002 NSCA 99 at para. 41; R. v. P. N., 2013 NLCA 16 at para. 15.
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