Appeal dismissed

Supreme Court upholds sexual assault conviction but warns trial judges not to turn trials into credibility contests

Matthew Berg argued the trial judge rejected his evidence simply because he believed the complainant. The Supreme Court of Canada found no error on these facts, but used the case to say that a conviction can never rest only on accepting the complainant's account.

R. v. Berg, 2026 SCC 21

Court: Supreme Court of Canada
Decided: Apr 14, 2026
Sentence: Not stated in the reasons. Mr. Berg was at liberty during the appeal and was ordered to surrender into custody when the appeal was dismissed.

Appeal dismissed; conviction for sexual assault stands and Mr. Berg was ordered to surrender into custody The court refused to set the conviction aside. Other routes may remain.

What happened

Matthew Berg was charged with sexual assault. It was common ground at trial that sexual intercourse took place. The main issue was consent. The complainant testified that she did not consent and that Mr. Berg forced himself on her. Mr. Berg testified that the whole encounter was consensual. The trial judge said he had no reason to reject Mr. Berg's testimony when it was looked at on its own. He then wrote that he rejected Mr. Berg's account because he accepted the complainant's testimony. He convicted. Mr. Berg appealed to the Court of Appeal for Saskatchewan. He argued two errors: that the trial judge did not resolve material inconsistencies in the complainant's evidence, and that the judge did not weigh her evidence against all the evidence, instead using it on its own to reject his account. The majority dismissed the appeal. One justice dissented, which gave Mr. Berg a right to appeal to the Supreme Court of Canada without needing permission. At the Supreme Court he raised the same two points. The Court heard the appeal on April 14, 2026, dismissed it at the end of the hearing, and ordered him to surrender into custody. Written reasons followed on June 5, 2026.

Procedural history

Undated
Matthew Berg charged with sexual assaultSaskatchewan
Undated
Trial by judge alone; complainant and accused both testify; judge rejects accused's account and convictsTrial court, Saskatchewan
2025
Majority (2025 SKCA 85) dismisses conviction appeal; one justice dissents, finding the trial judge rejected the accused's evidence without a considered and reasoned acceptance of the complainant's evidenceCourt of Appeal for Saskatchewan
Apr 14, 2026
Appeal as of right heard; judgment rendered from the bench dismissing the appeal and ordering Mr. Berg to surrender into custody, reasons to followSupreme Court of Canada
Jun 5, 2026
Written reasons for judgment of the Court releasedSupreme Court of Canada

The offence and its elements

Sexual assault

Criminal Code (section not cited in the reasons)

What the prosecution had to prove:

The accused intentionally touched the complainantnot disputedFrom the reasons
The touching was of a sexual naturenot disputedFrom the reasons
The complainant did not consent to the sexual activitydisputedFrom the reasons
The accused knew the complainant was not consenting, or was reckless or wilfully blind to the absence of consentnot addressedGeneral law: check the current text

The questions on appeal

Did the trial judge fail to resolve material inconsistencies in the complainant's testimony?: No. The Court substantially agreed with the majority of the Court of Appeal and did not discuss the point further.
Did the trial judge wrongly reject Mr. Berg's evidence simply because he accepted the complainant's evidence, turning the trial into a credibility contest?: No. Read as a whole, the reasons show the judge weighed Mr. Berg's account against the totality of the evidence, including corroborating circumstantial evidence, before finding guilt beyond a reasonable doubt. The single sentence, standing alone, would have been problematic.
Should trial judges use the Ontario Court of Appeal decision in J.J.R.D. when structuring their reasoning about conflicting accounts?: As a general rule, no. J.J.R.D. is about whether a trial judge's reasons are sufficient for appellate review. It is not a formula for deciding whether the Crown has proved guilt beyond a reasonable doubt.

The law the court applied

W. (D.) framework

When an accused testifies, the judge or jury must not simply choose between the accused and the Crown witness. Even if the accused's evidence is not believed, the question remains whether the whole of the evidence proves guilt beyond a reasonable doubt. A conviction cannot rest only on finding the Crown's evidence more believable.

R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152

Functional reading of trial reasons

An appeal court reads a trial judge's reasons as a whole and in context, not sentence by sentence, to decide whether the judge actually applied the right standard.

R. v. Berg, 2026 SCC 21

Sufficiency of reasons (J.J.R.D.)

A trial judge may explain the rejection of an accused's evidence by a considered and reasoned acceptance, beyond a reasonable doubt, of conflicting credible evidence. The Supreme Court says this is a test for whether reasons are sufficient on appeal, not a tool for trial judges to decide guilt.

R. v. J.J.R.D. (2006), 218 O.A.C. 37; R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39

What the court decided

The appeal is dismissed. The trial judge did not use J.J.R.D. to resolve a credibility contest and made no legal error. The Court gave general guidance: trial judges should not rely on J.J.R.D. when structuring a W. (D.) analysis or instructing a jury, because proof beyond a reasonable doubt demands more than a considered and reasoned acceptance of a complainant's evidence.

What happens next: The ordinary appeal process has ended with the Supreme Court's dismissal. Mr. Berg was ordered to surrender himself into custody. The reasons do not say anything about further steps.

Analysis

This is our commentary, separate from the court’s reasons.

How the Court read the key sentence

Mr. Berg raised two grounds: unresolved inconsistencies in the complainant's evidence, and the trial judge's use of her evidence to reject his. The Court dealt with both briefly by agreeing with the Saskatchewan majority. The sentence that drew most of the debate was the judge's statement that he rejected Mr. Berg's account because he accepted the complainant's. The Supreme Court openly said that sentence, standing alone, would be problematic. What answered the point was the rest of the reasons. The judge had also pointed to corroborating circumstantial evidence and had tested Mr. Berg's account against the totality of the evidence before reaching his conclusion. This is the familiar appellate method of reading reasons functionally. It cuts both ways. It protects sound verdicts from being undone by careless phrasing, but it also means an appellant cannot succeed just by finding one bad sentence. The question is always what the judge actually did.

The real purpose of the judgment

The Court said it substantially agreed with the Saskatchewan majority and would not discuss the two grounds further. The reasons are mostly about something else: a drift in trial practice that the Court said required guidance and correction. Over nearly twenty years, a passage from an Ontario sufficiency-of-reasons case had become a routine tool for trial judges facing two conflicting accounts where neither contained frailties standing alone. The risk, as the Court put it, is that a trier of fact comes to think it may reject the accused solely because it believes the complainant. That is the credibility contest that W. (D.) exists to prevent. The Court did not overrule J.J.R.D. It restored it to its original role, as a yardstick for appeal courts, and stressed the words 'beyond a reasonable doubt' that sit inside the oft-quoted passage. The footnote listing nine appellate cases where the passage was invoked shows how widespread the practice had become.

What this means for cases built on conflicting testimony

The Court noted that reliance on J.J.R.D. had become commonplace where two accounts conflict and neither shows obvious flaws on its own. This judgment does not say such cases cannot end in conviction. It says the path to conviction must run through the whole of the evidence and the reasonable doubt standard, and that the judge must explain why that high standard is met, not merely why the complainant was believed. For a person convicted after a judge-alone trial of this kind, the reasons will now be read against this guidance. Where a judge's reasoning shows nothing beyond a preference for one witness, this case gives an appellant a clear and authoritative statement of the error. In Mr. Berg's own case, the appeal failed because the reasons, read as a whole, showed the judge had weighed the circumstantial evidence and the totality of the record before finding guilt beyond a reasonable doubt.

If this feels close to home

An appeal court reads trial reasons as a whole. A single poorly worded sentence is rarely enough on its own; the question is whether the judge actually applied the right standard across the reasons.
The Supreme Court has confirmed that a judge may not reject an accused's evidence solely because the complainant was believed. If trial reasons show only a preference between two witnesses and nothing more, that is a recognised legal error.
Under the Criminal Code, a person convicted of an indictable offence whose conviction is affirmed by a provincial court of appeal may appeal to the Supreme Court of Canada without permission on a question of law on which a judge of that court dissented. The right is limited to indictable offences and to the question of law underlying the dissent, but it can open a door that would otherwise be shut.
A court may use an appeal to give general guidance while still dismissing the appeal itself. Here the Court clarified how J.J.R.D. should be used, but it found no error in Mr. Berg's trial on the two grounds he raised.
When the Supreme Court of Canada dismisses a conviction appeal, the ordinary appeal process is complete. These reasons do not address any other procedure, and anyone in that position would need advice on whether any other route exists in their circumstances.

What other routes exist Find legal aid

How this was checked

Written by Claude Fable 5.1 (Anthropic AI) from the source below, then independently audited against it by GPT-6-Astra (OpenAI AI) on Oct 30, 2026. Every citation here was confirmed by software to appear in the decision or an official text. No lawyer has reviewed this brief. Our standards

Citations

R. v. Berg, 2026 SCC 21 The decision reported in this brief
2025 SKCA 85The Saskatchewan Court of Appeal decision under appeal; majority upheld the conviction, one justice dissented
R. v. J.J.R.D. (2006), 218 O.A.C. 37Ontario decision on sufficiency of reasons that trial judges had been using to structure credibility findings; the Court limited it to appellate review
R. v. W. (D.), [1991] 1 S.C.R. 742The framework for assessing an accused's evidence and the prohibition on credibility contests
R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39Paciocco J.A.'s explanation, adopted by the Court, that J.J.R.D. is not a formula for overcoming unassailable exculpatory evidence
R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5Authority that a guilty verdict cannot rest only on believing the Crown's evidence
R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152Authority on the presumption of innocence and the reasonable doubt standard in W. (D.) analysis

Sources

R. v. Berg, 2026 SCC 21

This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.