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Criminal - Jury Charge - W.D.. R. v. Vivian
In R. v. Vivian (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here while considering W.D. jury charge issues:(1) Conviction Appeal
[24] The appellant submits that the trial judge erred in his W.(D.) instruction to the jury. First, it was inconsistent with the defence theory and confusing. Moreover, in light of the Crown’s closing submissions about intention that effectively reversed the burden of proof, the charge should have included the following modified W.(D.) instruction: even if the jury did not affirmatively accept the defence expert’s evidence, that evidence, along with the other evidence, could still leave them with a reasonable doubt about the appellant’s guilt. The appellant argues that the lack of any objection by defence counsel is of no moment because this was of no tactical or other benefit to the defence.
[25] I agree that the W.(D.) instruction did not appear to reflect the defence position in that the defence ultimately asserted that the contents of the 911 calls were not true but a manifestation of the appellant’s delusions. I am not persuaded, though, that the W.(D.) instruction undermined the defence or confused the jury, nor that the jury would have been unclear about the Crown’s burden or the presumption of innocence. Given the focus of the evidence at trial, the closing submissions, and the jury charge, the jury could not have been in any doubt that the principal issue was whether the Crown had proven beyond a reasonable doubt that the appellant deliberately fired the handgun in the hotel room.
[26] Justice Watt in R. v. Parris, 2013 ONCA 515, 309 O.A.C. 289, at para. 76, provided the following guidance in assessing the adequacy of a jury charge in the context of a challenged W.(D.) instruction:Our obligation upon appellate review is to take a functional approach to the charge as a whole to determine whether the jury could have been left with any misunderstanding about the obligation of the Crown to prove an accused's guilt beyond a reasonable doubt on the evidence as a whole, not by simply choosing between the competing versions. [Citations omitted.] [27] In applying the well-established functional approach to the jury charge, I conclude that the jury was provided with the tools it needed to decide the case. In addition to the general instructions about the Crown’s burden of proof and the presumption of innocence, the jury was repeatedly instructed that the Crown had the unwavering burden to prove beyond a reasonable doubt that the appellant had intentionally discharged the firearm. The jury was also instructed twice that the defence expert evidence that the firearm could have been discharged from inside the appellant’s overalls could be considered in relation to the question of the element of intention to discharge the firearm.
[28] I am not persuaded that the trial judge should have given a modified W.(D.) instruction in relation to the defence expert evidence in the form suggested by the appellant. Such an instruction would not have fulfilled the purpose of the W.(D.) instruction. As Watt J.A. stated in Parris, at para. 75:The purpose of instructions such as those suggested in W. (D.) and their functional equivalents is to ensure that the jury understands that their verdict must be not based on a choice between the evidence of the accused and that tendered by the Crown, but on whether, based on the whole of the evidence, they are left with a reasonable doubt about an accused’s guilt. [Citations omitted.] [29] In my view, the proposed instruction would have proved confusing to the jury. The underlying rationale for a W.(D.) instruction on the expert evidence was absent: as defence counsel observed during the pre-charge conference, there was no real conflict in the expert evidence and therefore no risk that the jury would assess it on an either/or basis. Moreover, if accepted, the defence expert evidence could only establish that at some point in time a bullet was fired through the knee of the appellant’s overalls, not necessarily while the overalls were worn by the appellant and not necessarily at the time of the offence. The proposed instruction does not make clear how the defence expert evidence, together with other unidentified evidence, could leave the jury with a reasonable doubt on the issue of whether the discharge was accidental or not. The jury could have accepted the defence expert evidence and still have concluded that the appellant deliberately fired the handgun into the wall.
[30] Rather, the trial judge’s reference to the defence expert evidence in the instructions on the elements of the offence was of the most assistance to the jury. It clearly focused the jury’s attention on the issue of intention to discharge the handgun and directed the jurors to consider the impact of the defence expert evidence on that issue. That instruction, together with the multiple instructions about the Crown’s burden and the presumption of the appellant’s innocence, provided the jury with the appropriate analytical means to assess the evidence and come to a verdict.
[31] Relatedly, the appellant submits that the proposed W.(D.) instruction or a corrective instruction was necessary in light of the above-referenced portion of the Crown’s closing about intention. He argues that Crown’s closing misled the jury about the relationship between circumstantial evidence and reasonable doubt and effectively reversed the burden of proof.
[32] I disagree. Crown counsel’s statements repeat a general presumption about intending one’s actions. I agree that Crown counsel’s apparent leap from the general presumption of intending one’s actions to the specific presumption that the appellant fired the handgun unless the evidence convinces the jury otherwise appears problematic. However, it occasioned no harm when considered in the context of the entirety of the Crown’s submissions. Moreover, the repeated reminders in Crown’s and defence closing submissions, and in the jury charge of the Crown’s burden and the presumption of innocence of the appellant, would have left the jury in no confusion.
[33] Finally, I do not accept that defence counsel’s failure to object to the charge is of no importance in this case. As Watt J.A. stated in Parris, at para. 83: “While failure to object is not fatal to a claim of error, it is of some significance in light of the opportunities for objection presented to counsel at trial.” . R. v. W.D. [this is the original W.D. (SCC) case]
In R. v. W.D. (SCC, 2024) the Supreme Court of Canada - in a commonly-cited criminal case - considers 'reasonable doubt' jury charges, here whether an error solely on a jury re-charge justified granting the defendant's appeal (it didn't):It is clear that the trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply: R. v. Thatcher, supra.
Where an error is made in the instruction on the burden of proof, the fact that the trial judge correctly instructed on that issue elsewhere in the charge is a strong indication that the jury were not left in doubt as to the burden resting on the Crown. The following passage from the case of R. v. Roberts (1975), 1975 CanLII 1394 (BC CA), 24 C.C.C. (2d) 539 (B.C.C.A.), at p. 550, aptly summarizes this principle:... the appellant argued that the ... trial Judge misdirected the jury in charging that to support the appellant's defences they must "accept his evidence as truthful" rather than charging that the jury could find that his evidence might reasonably be true or that the jury could have reasonable doubt as to his guilt. It was acknowledged by counsel for the appellant that the ... trial Judge had earlier in his charge to the jury clearly and accurately directed the jury generally on the matter of reasonable doubt, but, in the passage particularly impugned, counsel maintains the trial Judge should have added "beyond a reasonable doubt". The comment ... of Chief Justice Cartwright ... in R. v. Trinneer ... is appropriately applicable (at p. 295): "It is not incumbent on a trial Judge to repeat again and again a rule of law which he has put before the jury clearly and accurately." ....
Disposition
The main charge was correct and fair. The recharge given within ten minutes of the main charge reminded the jury of the duties imposed upon them in the main charge. In all the circumstances of this case, despite the error in the recharge, the charge read as a whole adequately instructed the jury that if they had a reasonable doubt as to the guilt of the accused, they must acquit. In the result, I would dismiss the appeal.
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