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Criminal - Jury Charge - W.D.. R. v. Verma
In R. v. Verma (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a conviction for importing opium.
Here the court considers the adequacy of a W.D. jury charge:(3) The W.(D.) instruction
[31] The appellant’s third ground of appeal is that the trial judge erred by limiting her W.(D.) instruction to the appellant’s own trial testimony: see R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[32] His argument has two branches. First, he contends that the W.(D.) instruction should have been expanded to include evidence from Crown witnesses that was favourable to his defence. He focuses in particular on the testimony of the CBSA screening and secondary inspection officers that they noticed nothing suspicious about the appellant’s behaviour, and the secondary inspection officer’s further evidence that she saw nothing suspicious about the appearance of the boxes before she opened them and found that they held opium.
[33] W.(D.) instructions are meant to make jurors understand that evidence they do not affirmatively believe can still contribute to a reasonable doubt. Justice Cory’s three-part instruction is also phrased to apply only to evidence that would, unless entirely rejected, compel an acquittal.
[34] In this case, it would plainly have been wrong to tell the jurors that if they believed the CBSA officers’ testimony about not noticing anything suspicious, then “obviously you must acquit”. Moreover, the credibility of the CBSA officers’ evidence about their subjective suspicion levels had not been challenged, and there was no realistic prospect that the jury would disbelieve the CBSA officers’ testimony that they had not suspected anything before the drugs were found.
[35] I agree that the jurors had to take the CBSA officers’ evidence into account when deciding whether they could entirely reject the appellant’s testimony. However, at other points in the charge the jury was told to “[c]onsider all of the evidence in reaching your decision”, and to draw conclusions “based upon the evidence as a whole”. It would not have been lost on the jurors that when deciding whether the appellant’s testimony left them with a reasonable doubt, they had to consider his evidence in the context of all of the evidence, including the testimony from the CBSA officers. I am not persuaded that it was necessary for the trial judge to repeat this point in her W.(D.) instruction.
[36] Second, the appellant argues that the W.(D.) instruction should have referred not just to his trial testimony, but to his own exculpatory out-of-court statements. He focuses in particular on his statement to the CBSA secondary inspection officer that his uncle had told him that the boxes contained sweets. The appellant argues that this court’s decision in R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, required this exculpatory utterance to be included in the W.(D.) instruction.
[37] The appellant is correct that since his out-of-court statements had been adduced by the Crown, both their exculpatory and inculpatory parts were admissible for their truth: see e.g., R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 37. However, unlike the situation in Bucik, the appellant also testified in his own defence, giving an expanded account of how his uncle had arranged for the appellant to bring back boxes of what he believed were Indian sweets. His own prior consistent out-of-court statements were not independent evidence that could bolster his in-court testimony: see e.g., R. v. S.C., 2023 ONCA 832, at para. 14.
[38] Moreover, in this context there was no realistic prospect that the jury would entirely reject the appellant’s trial testimony in which he denied knowledge of the drugs in his luggage, yet still be left with a reasonable doubt by his out-of-court statement that his uncle had told him the boxes contained sweets. Put another way, if the appellant’s out-of-court statement left the jury with a reasonable doubt about whether he knew about the drugs in his luggage, they would equally have been unable to entirely reject his exculpatory trial testimony.
[39] In short, I am not persuaded that the trial judge erred by framing her W.(D.) instruction to focus on the appellant’s trial testimony. Significantly, defence counsel at trial did not ask for a more expansive W.(D.) instruction.
[40] I am also satisfied that when the trial judge’s instructions on reasonable doubt are read as a whole, they made it clear that the jurors had to consider all of the evidence, and that a reasonable doubt could arise from evidence that they did not fully believe. In particular, before giving her W.(D.) instruction, the trial judge told the jury:Reasonable doubt applies to issues of credibility and reliability. On any given point, you may believe a witness, disbelieve a witness, or not be able to decide. You need not fully believe or disbelieve one witness or a group of witnesses. You may accept some, none, or all of what a witness says. If you have a reasonable doubt about Mr. Verma’s guilt arising from the credibility or reliability of the witnesses, then you must find him not guilty of the offence. Later, after giving the W.(D.) instruction, the trial judge reiterated:So, again, the point is do not just choose between the Crown or defence evidence. That would lower the burden and standard of proof on the Crown. You always ask whether the Crown has proven guilt beyond a reasonable doubt. [41] I am satisfied that the charge as a whole made it clear to the jury how they were to approach the evidence in order to properly apply the criminal burden and standard of proof. . R. v. N.P.
In R. v. N.P. (Ont CA, 2025) the Ontario Court of Appeal considers criminal W.D. instructions:[11] In R. v. T.D., 2024 ONCA 860, at para. 37, Dawe J.A. articulated the function of the W.(D.) instruction as follows:The W.(D.) formulation helpfully explains the practical operation of the fundamental principle that the Crown must prove the accused’s guilt beyond a reasonable doubt. However, it is “not a sacrosanct formula that serves as a straitjacket for trial courts”, nor is it one that trial judges are “required to slavishly follow and delineate in their reasons”: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29; R. v. Karnes, 2013 ONCA 605, at para. 10. . 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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