R. v. Berg: A Criminal Trial Is Not a Credibility Contest — What the Supreme Court’s New Ruling Means for Accused Persons 

by Jason Tarnow | Sep 3, 2026 | Crime, Police

In June, the Supreme Court of Canada released R. v. Berg, 2026 SCC 21,  and every criminal defence lawyer in BC should have it bookmarked. The decision tackles a question I confront constantly in my Vancouver practice: in a trial that comes down to two conflicting accounts — the complainant’s word against the accused’s — how does a judge decide without turning the trial into a credibility contest?

The answer, the Court confirmed unanimously, is that a judge never simply picks the more believable witness. A conviction must rest on proof beyond a reasonable doubt, assessed against the whole of the evidence. Preferring one account over another is not enough.

That may sound like a truism. It isn’t. As Berg shows, appellate courts are still catching trial judges who slide — sometimes subtly — from “I believe the complainant” to “therefore the accused is guilty.” For anyone facing sexual assault charges in British Columbia or the Yukon, this decision matters.

What Happened in R. v. Berg

The facts were, in one sense, unremarkable — which is exactly why the case is so important. Mr. Berg met the complainant when he checked into the hotel where she worked. They exchanged contact information, stayed in touch, and she accepted an invitation to his room after her shift. She testified that he sexually assaulted her; he testified the intercourse was consensual. There was no third witness and no decisive physical evidence. The trial turned entirely on testimony.

The trial judge accepted the complainant’s evidence, rejected Mr. Berg’s account, and convicted him of sexual assault under s. 271 of the Criminal Code. A majority of the Saskatchewan Court of Appeal upheld the conviction (2025 SKCA 85), but a dissenting judge would have ordered a new trial, concluding that the trial judge failed to properly grapple with inconsistencies in the complainant’s evidence about her alcohol and marijuana consumption. That dissent gave Mr. Berg an appeal as of right to the Supreme Court.

The Supreme Court dismissed the appeal — the conviction stands — but its reasons deliver guidance that will shape trials for years.

The J.J.R.D. Problem: How Courts Drifted Toward Credibility Contests

For nearly two decades, trial judges across Canada have leaned on R. v. J.J.R.D. (2006), 218 O.A.C. 37, an Ontario Court of Appeal decision, when explaining why they rejected an accused’s testimony. The case was routinely cited for the proposition that a judge may reject an accused’s uncontradicted evidence based on a “considered and reasoned acceptance” of the complainant’s conflicting account.

In Berg, the Supreme Court clarified that J.J.R.D. was really about something narrower: whether a trial judge’s reasons were detailed enough to permit appellate review. The Court held that trial judges should generally not rely on J.J.R.D.when assessing an accused person’s evidence or instructing a jury. Used incorrectly, it wrongly suggests a judge can reject the accused’s evidence simply because the judge accepts the complainant’s — a shortcut that inverts the burden of proof.

This is not an academic quibble. In my practice, I have read countless trial rulings where the reasoning ran, in substance: “The complainant was credible. I accept her evidence. It follows that I reject the accused’s denial.” Berg confirms that this chain of reasoning, standing alone, is an error of law.

W.(D.) Still Governs: The Three-Step Framework

The bedrock remains R. v. W.(D.), [1991] 1 S.C.R. 742. The framework, familiar to every criminal lawyer in British Columbia, asks three questions where the accused testifies:

• If you believe the accused’s evidence, you must acquit.
• Even if you do not believe it, if it leaves you with a reasonable doubt, you must acquit.
• Even if the accused’s evidence does not raise a doubt, you must ask whether, on the evidence you do accept, the Crown has proven guilt beyond a reasonable doubt.

Berg reinforces that the third step is not a formality. The accused’s account must be considered against the totality of the evidence — not dismissed as the automatic by-product of believing the complainant. Notably, the Court found the trial judge in Berg did exactly what the law requires: he assessed Mr. Berg’s account in light of all the evidence before convicting. The conviction survived because the reasoning was sound, not because the complainant was preferred.

Berg and Kinamore: A Pattern at the Supreme Court

Berg does not stand alone. A year earlier, in R. v. Kinamore, 2025 SCC 19 — an appeal from our own BC courts — the Supreme Court unanimously quashed a sexual assault conviction and ordered a new trial. Kinamore held that evidence of a complainant’s sexual history, including sexual inactivity, is presumptively inadmissible under the principles animating s. 276 of the Criminal Code, and that the Crown must clear the same voir dire hurdle as the defence before leading it.

Read together, the two decisions send a consistent message: sexual assault trials are governed by rules of evidence and proof that protect both complainants and accused persons, and neither side gets a shortcut. For defence counsel, they are complementary tools — Kinamore polices what evidence gets in; Berg polices how the judge reasons once it is in.

What This Means for Accused Persons in BC and the Yukon

If you are charged with sexual assault in British Columbia, the odds are high that your trial will look like Berg’s: two accounts, no independent eyewitness, and a verdict that turns on testimony. Here is what a criminal defence lawyer in BC will be examining after this decision:

The structure of the judge’s reasons. In a judge-alone trial — the norm for s. 271 prosecutions in BC Provincial Court, where the Crown often proceeds by indictment but the accused elects trial by provincial court judge — the written or oral reasons must show that the accused’s evidence was weighed against the whole record. Reasons that leap from accepting the complainant to rejecting the accused are now squarely vulnerable on appeal.

Jury instructions. Where the trial is in the BC Supreme Court before a jury, defence counsel will scrutinize the charge to ensure the jury was not directed in a way that invites a credibility contest. Berg says J.J.R.D. language does not belong in jury instructions.

Inconsistencies in the Crown’s evidence. The dissent below focused on the complainant’s inconsistent statements about intoxication. While Mr. Berg ultimately lost, the case confirms that material inconsistencies must be genuinely analyzed — not waved away — when the judge assesses whether the Crown has met its burden.

Preserved appeal routes. Berg reached the Supreme Court because of a dissent in the provincial appeal court. It is a reminder that a strong appellate record starts at trial: objections to reasoning shortcuts, requests for particularized credibility findings, and careful cross-examination all preserve issues for review.

None of this is legal advice about any particular case — the factors above are what counsel examines, and every file turns on its own facts.

Why Experienced Counsel Matters in “Word Against Word” Trials

Cases like Berg are won and lost in the details: how cross-examination exposes inconsistency without alienating the trier of fact, whether evidentiary applications under ss. 276 and 278.92 to 278.94 of the Criminal Code are properly brought or resisted, and whether the trial record positions the defence for appeal if a conviction follows. These are craft skills built through years of trial work — precisely the kind of trials I have defended across sexual offence and assault files in Vancouver and throughout BC and the Yukon.

Frequently Asked Questions

Can I be convicted of sexual assault just because the judge believes the complainant more than me?

No. R. v. Berg, 2026 SCC 21 confirms that a conviction cannot rest on merely preferring the complainant’s account. The Crown must prove guilt beyond a reasonable doubt on the whole of the evidence, and the judge must explain why your evidence, considered against that record, did not raise a doubt.

What is the W.(D.) framework?

It is the three-step approach from R. v. W.(D.), [1991] 1 S.C.R. 742: acquit if you believe the accused; acquit if the accused’s evidence leaves a reasonable doubt; and even if it does not, convict only if the evidence you accept proves guilt beyond a reasonable doubt.

Does R. v. Berg apply in British Columbia?

Yes. Supreme Court of Canada decisions bind every court in Canada, including the BC Provincial Court, BC Supreme Court, BC Court of Appeal, and the Yukon courts.

Can a conviction be appealed if the trial judge’s credibility reasoning was flawed?

Potentially. Flawed credibility reasoning — such as rejecting the accused’s evidence solely because the complainant was believed — can be an error of law supporting an appeal. Strict deadlines apply, so speak to a criminal defence lawyer promptly.

What should I do if I’m charged with sexual assault in BC?

Exercise your right to silence, do not contact the complainant, and retain experienced defence counsel before your first court appearance. Early decisions — including Crown election, bail conditions, and evidentiary applications — can shape the entire case.

This article is general legal information, not legal advice, and reading it does not create a solicitor-client relationship. Sexual assault allegations carry serious consequences, and every case turns on its own facts. If you are facing charges, retain qualified defence counsel without delay.