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Criminal - Reasonable Doubt

. R. v. S.B.

In R. v. S.B. (Ont CA, 2023) the Court of Appeal considers (in split but concurring decisions, with the majority at paras 30-69) an aspect of the leading criminal reasonable doubt W.D. case:
The Failure to Consider S.B.’s Evidence was a W.(D.) Error

[58] At paras. 30 and 31 of his reasons, the trial judge instructed himself correctly on the need to apply the principles of W.(D.)[1] and he recognized that “[t]o obtain a conviction, the Crown must negate all exculpatory evidence, whether it arises in its own case or the defence case”. However, contrary to his self-instruction, the trial judge did not consider S.B.’s evidence in relation to the issue of C.F.’s capacity to consent, and he did not require the Crown to “negate all exculpatory evidence”.

[59] The failure to consider S.B.’s evidence in relation to the Crown’s proof of the actus reus of the offence was a W.(D.) error. The trial judge was obliged to consider S.B.’s evidence to determine whether he accepted it, or whether it raised a reasonable doubt. He could only convict if, reaching the third stage, on all the evidence he was satisfied beyond a reasonable doubt. “The ultimate issue [is] not whether [the trial judge] believed [the complainant or the accused], or part or all of what they each had to say. The issue at the end of the trial [is] not credibility but reasonable doubt”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 65.
. R. v. P.W.

In R. v. P.W. (Ont CA, 2023) the Court of Appeal considered applying the criminal burden of proof to "the entirety of the evidence":
[6] On the second point, the trial judge did not fail to apply the burden of proof to the entirety of the evidence. He rejected the appellant’s denial, finding him lacking in credibility on critical matters. He also accepted the credibility of the complainant and provided cogent reasons for why he came to that conclusion. Read in its entire context, the reasons supported the trial judge’s ultimate finding that the third prong of the test from R. v. (W.D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, had been satisfied.
. R. v. G.B.

In R. v. G.B. (Ont CA, 2023) the Court of Appeal considered the leading W.(D.) case:
[15] The trial judge described the principles in W.(D.) in this way:
The guidance in W.(D.) provides as follows:
a. first, if I believe the evidence of the accused, then I must acquit;

b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and

c. third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
. R. v. Diehl

In R. v. Diehl (Ont CA, 2023) the Court of Appeal considered the leading W.(D). case, here particularly regarding credibility:
[8] In this case, the trial judge began his reasons by correctly setting out the test for the review of evidence set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and then noted that,
W.D. does not apply to each individual piece of evidence but only to essential elements of the offence. When assessing credibility, I must examine both the internal consistency of a witness’s evidence as well as the consistency of that evidence with other witness’s evidence. I must apply the same level of scrutiny to all witnesses.

...

In cases of this nature, the credibility assessment is the central issue and ultimately informs the findings that determine whether the Crown has proven its case beyond a reasonable doubt or whether or not the evidence as a whole raises a reasonable doubt.

Credibility speaks to veracity and truth telling. While reliability speaks to accuracy and trustworthiness. A motive to fabricate or lie are relevant factors that I may consider. What I must not do is permit a criminal trial to turn into a credibility contest where I simply pick one version of events over another. To do so undermines both the presumption of innocence and the burden of proof placed on the Crown.

The burden of proof never shifts to the defendant. Section 265(3)b provides that the complainant’s consent to sexual assault may be vitiated by fear or the application of force. I must be careful not to subscribe to any of the judicially recognized myths and stereotypes regarding sexual assaults. I must be aware of assumptions of how a victim of sexual assault typically or normally responds to such acts. Though, I must not rely upon or draw adverse inferences from any of these myths or stereotypes, I must nonetheless apply the same level of scrutiny to the complainant’s testimony as I do the testimony of other witnesses. See R. v. Greer [2009] ONCA 505 at paragraph six.

...

I am mindful the defence cautions me to consider the notion that a consenting woman will calmly accept sexual disappointments as a potential myth or stereotype.
[9] He then provided a summary of the evidence adduced by both parties, followed by an assessment of the credibility and reliability of the complainant’s evidence. It is immaterial whether the court assesses the evidence of the complainant before or after the evidence of the accused: R. v. Gerard, 2022 SCC 13.
. R. v. U.K.

In R. v. U.K. (Ont CA, 2023) the Court of Appeal considered the leading case of W.(D). on reasonable doubt:
(i) The relevant legal principles

[117] The purpose of an instruction on the principles from W.(D.) is to explain to the jury how the reasonable doubt standard and the Crown’s burden of proof applies in the context of conflicting testimonial accounts. The instruction must make clear to the jury that their task is not to decide whether they accept the Crown evidence or the defence evidence, as a binary choice or credibility contest. The instruction is intended to make clear to the jury that they need not believe exculpatory defence evidence in order to acquit an accused, but rather, that they must acquit if the defence evidence (or some portion of it) leaves them with a reasonable doubt: W.(D.), at pp. 757-58; R. v. C.L. 2020 ONCA 258, 387 C.C.C. (3d) 39, at paras. 25-27; R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 106-07.

[118] The principles in W.(D.) extend beyond the evidence of the accused. They apply to other exculpatory defence evidence, and also to evidence favourable to the defence in the Crown case, about which the trier of fact must make credibility findings. In cases where there is exculpatory defence evidence other than the testimony of the accused (or evidence in the Crown’s case which is exculpatory if believed or raising a reasonable doubt), the instruction must be modified to make clear to the jury that it is not necessary for them to believe the evidence in order to acquit; rather, it is sufficient that the evidence (viewed in the context of the evidence as a whole) leaves them with a reasonable doubt: B.D., at paras. 105-14.

[119] It is a basic principle of criminal liability that in a joint trial, the trier of fact must consider the liability of each accused individually. This principle applies to instructions given to a jury on the principles from W.(D.). It is an error for a trial judge in a joint trial to conflate two (or more) accused for the purposes of a W.(D.) instruction: R. v. Josipovic, 2019 ONCA 633, 147 O.R. (3d) 346, at paras. 40, 60, 62; R. v. Parris, 2013 ONCA 515, 300 C.C.C. 3(d) 41, at paras. 77-79
. R. v. V.K.

In R. v. V.K. (Ont CA, 2023) the Court of Appeal considered the leading W.(D.) case regarding criminal reasonable doubt:
[12] Nor do we accept the submission that the trial judge erred in articulating and applying W.(D.). When defence counsel raised W.(D.) in closing submissions, the trial judge stated:
[O]f course, if I believe the accused, he’s entitled to the acquittal. But even if I didn’t believe the accused, totally, if I disregard his evidence in its entirety, then I still have to look at the remaining evidence, which is essentially the Crown evidence here and be satisfied beyond a reasonable doubt, that the remaining evidence satisfies the test of proof beyond a reasonable doubt.
[13] It is clear from this exchange and from his reasons that the trial judge was alive to the test. While his reasons do not cite W.(D.), his treatment of the evidence shows that he understood and applied the relevant principles. He stated that he was satisfied “beyond a reasonable doubt that the Crown [had] made out its case”, explaining that he was convinced of the appellant’s guilt based on a combination of the wife and daughter’s evidence. He also stated that he found the appellant’s evidence to be “uncredible”.
. R v. Haist

In R v. Haist (Ont CA, 2023) the Court of Appeal considered authority on assessing reasonable doubt:
[26] As this court pointed out in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 39, “[f]undamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused.”

[27] Further, as noted in para. 38 of Lights, “a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence.”

[28] Here, the trial judge gave careful and detailed consideration to the same arguments as made on appeal. A trier of fact, here, “acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole”: Lights, at para. 39.
. 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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Last modified: 12-06-24
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