|
Criminal - Reasonable Doubt. R. v. Fitzpatrick
In R. v. Fitzpatrick (Ont CA, 2026) the Ontario Court of Appeal allowed two criminal appeals, one against a first-degree murder conviction and the other against a manslaughter conviction.
The court considers the W.D. 'beyond a reasonable doubt' doctrine, here in an examination of related jury charge issues:[85] The W.(D.) instruction is directed at ensuring that the jury understands that which is not intuitive: a trial is not a contest between two competing versions of events; evidence does not have to be accepted or believed to still leave a trier of fact with a reasonable doubt; and mere disbelief of exculpatory evidence does not lead to a conviction. As Paciocco J.A. explained in R. v. Hoffman, 2021 ONCA 781, at para. 36:W.(D.) directions are provided to ensure that jurors properly apply the criminal standard of proof when making credibility and reliability determinations relating to exculpatory evidence on vital issues, most commonly the essential elements of charged offences or applicable defences. [Citations omitted.] [86] Where there is exculpatory evidence from other sources than the accused or defence witnesses, this court has held that it is appropriate to modify the W.(D.) instruction to refer specifically to that exculpatory evidence: see e.g., Hoffman, at para. 40; R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 105-14; and R. v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at para. 45. As the foregoing cases demonstrate, a modified instruction is most often included where the exculpatory evidence comes from the Crown’s witnesses. Exculpatory evidence in this context refers to evidence which, if accepted, would be inconsistent with an accused person’s guilt: R. v. Panovski, 2021 ONCA 905, at para. 86; R. v. Boucher, 2022 ONCA 40, at paras. 77-78; and R. c. Sarroino, 2025 QCCA 573, at paras. 22-27, leave to appeal granted, [2025] S.C.C.A. No. 298. Nevertheless, a W.(D.) instruction is not required for every aspect of the evidence on which an accused relies: R. v. Cyr, 2012 ONCA 919, 294 C.C.C.(3d) 421, at para. 57. Nor are trial judges required to relate the reasonable doubt instruction to specific pieces of evidence: Boucher, at para. 69.
....
[91] The Crown also argues that a modified W.(D.) instruction would not have been appropriate because, even if the jury had a reasonable doubt that the shooter was Black, Wright would not have been entitled to a complete acquittal. As mentioned earlier, Wright could still have been found guilty of murder as the non-shooter via party liability. In support of this submission, the Crown relies on this court’s decision in R. v. Dadollahi-Sarab, 2021 ONCA 514, leave to appeal refused, [2021] S.C.C.A. No. 356. The Crown acknowledges that the more recent case of Hoffman supports Wright’s argument that a trial judge can provide a modified W.(D.) instruction where it will only result in an acquittal on one theory of liability, but not on another or others. I do not consider these cases to be inconsistent on the appropriateness of a W.(D.) instruction in these circumstances.
[92] In Dadollahi-Sarab, this court considered the appropriateness of a Vetrovec instruction[6] for a so-called mixed witness — a witness who gives both inculpatory and exculpatory evidence. When considering the appropriateness of jury instructions in that case, the court commented that a W.(D.) instruction on the Vetrovec witness’s evidence would not have been appropriate because their exculpatory evidence would not necessarily have resulted in the appellant’s acquittal: Dadollahi-Sarab, at paras. 101, 120 and 126. Instead, as here, the appellant could still have been found guilty of murder on a different theory of liability.
[93] However, there is an important distinction between Wright’s circumstances and those in Dadollahi-Sarab. In Dadollahi-Sarab, the court observed that though the evidence was exculpatory on the Crown’s main theory of liability, it was inculpatory on the Crown’s other theory of liability: at para. 101. Consequently, the court concluded that a W.(D.) instruction would have been problematic: Dadollahi-Sarab, at paras. 120, 124-26. Here, there is no suggestion that C.H.’s evidence was inculpatory on the Crown’s alternate theory that Wright was not the shooter but was still liable for Hall’s killing. Instead, it was purely exculpatory on its primary theory that he was the shooter.
[94] It is also not entirely clear from Dadollahi-Sarab at what point in the jury charge the court is referring to the appropriateness of including a modified W.(D.) instruction. If the court was referring to referencing supposedly exculpatory evidence as part of a general instruction, rather than one directed at a particular element of the offence (as is at issue here), then I agree that including a modified instruction at this stage would have been inappropriate.
[95] Consequently, I do not read Dadollahi-Sarab as creating a general rule that a W.(D.) instruction is inappropriate whenever exculpatory evidence would not lead to an outright acquittal. Moreover, as I will explain, Hoffman makes clear why a W.(D.) instruction is appropriate even when exculpatory evidence does not lead to an outright acquittal.
[96] In Hoffman, this court held that a modified W.(D.) instruction will be appropriate even if it results in an acquittal on only one theory of liability: at para. 46. The victim in Hoffman was swarmed by a group of people and violently assaulted. While the victim was on the ground, someone struck him with a tree branch. The Crown pursued two alternate theories of liability. The Crown alleged that Hoffman was part of the group that swarmed the victim, or that he was the person who struck the victim with the tree branch. A witness gave evidence that was exculpatory on the Crown’s theory that Hoffman struck the victim with the branch. It was not exculpatory of Hoffman’s involvement in the swarming. Notably, unlike the evidence in Dadollahi-Sarab, it was not inculpatory either.
[97] In concluding that the trial judge ought to have provided a modified W.(D.) instruction, Paciocco J.A. made clear, at para. 46, that “a W.(D.) direction is required where evidence is exculpatory on only one of the Crown’s theories of culpability, but not others.” Paciocco J.A. reasoned, at para. 47, that “[I]f a version of events is vital enough to support a conviction if it is proved by incriminating evidence, it is vital enough to require a W.(D.) direction if challenged by exculpatory evidence.”
[98] To be clear, I do not read cases which have required a modified W.(D.) instruction, including Hoffman, as establishing a hard and fast rule that the absence of such a modified instruction will automatically render a jury charge deficient. Appellate review of jury charges is functional: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 35. The sufficiency of instructions relating to exculpatory eyewitness evidence requires “a case-by-case determination that will invariably result in different outcomes on appeal given the functional and contextual approach to appellate review”: Bowcock, at para. 41. The question is not whether the trial judge used a particular formula, “but whether the charge as a whole, in the context of the particular case served its purpose by delivering the necessary message”: Dadollahi-Sarab, at para. 112. That is why even an erroneous W.(D.) instruction does not automatically require a new trial. The ultimate question is whether the jury was properly equipped to apply the reasonable doubt standard to exculpatory evidence. The W.(D.) instruction is a helpful way of explaining how to apply the reasonable doubt standard. But it is not the only way: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. As long as the jury instructions as a whole properly explain how the reasonable doubt standard should be applied on the evidence heard at trial, the charge will be sufficient.
[99] In this case, given how central C.H.’s initial description was to Wright’s defence, it should have been part of a modified W.(D.) instruction on the question of whether Wright caused Hall’s death.
[100] In fairness to the trial judge, Wright’s trial counsel did not ask him to provide a modified W.(D.) instruction, nor did trial counsel raise any objection to this aspect of the charge. Only Fitzpatrick’s counsel asked that the W.(D.) instruction refer to other evidence. However, there was no tactical advantage for Wright not to have asked for C.H.’s evidence to be referenced in the W.(D.) instructions, nor could this have benefitted him.
[101] Wright submits that the absence of the modified W.(D.) instruction, on its own, justifies ordering a new trial. As noted above, not every error in a W.(D.) instruction will result in a new trial. Again, the question is not whether the trial judge uses specific words or a precise formula, but whether the charge as a whole properly equips a jury to apply the criminal standard of proof: R. v. Darnley, 2020 ONCA 179, 387 C.C.C. (3d) 200, at para. 38.
[102] I need not decide whether the absence of a modified instruction here, on its own, warrants ordering a new trial. Considered together with Crown counsel’s inappropriate closing address, I am satisfied that its absence undermined the fairness of the trial. Before turning to that ground of appeal, I will briefly address the other alleged error in the trial judge’s W.(D.) instructions — that they were over-inclusive. . R. v. A.S.
In R. v. A.S. (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, here brought against "his convictions, in a trial by jury, for two counts of sexual assault, one count of invitation to sexual touching, and one count of indecent exposure to a person under 16 years of age.".
Here the court notes that W.D. principles apply to Crown-called evidence, as well as to that evidence called by the defendant:[64] The judge presiding at the retrial will have to consider the appropriate instructions in light of the evidence led and issues at the retrial. Without directing any particular wording, I emphasize the fundamental principle that must be conveyed to the jury, as outlined by Watt J.A. in R. v. E. (F.E.), 2011 ONCA 783, 282 C.C.C. (3d) 552, at para. 104:The principles that underlie W. (D.) are not restricted to cases where an accused testifies and where his or her evidence conflicts with evidence of witnesses for the prosecution. Where, on a vital issue, credibility findings must be made between conflicting evidence called by the defence or emerging from evidence favourable to the defence adduced as part of the Crown's case, the trial judge must relate the principle of reasonable doubt to those credibility findings: R. v. D. (B.), [2011] O.J. No. 198, 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114. What the jury must understand is that to find an accused not guilty, they need not believe the defence evidence on the vital issue; rather, it is enough that the conflicting evidence leaves them with a reasonable doubt about the accused’s guilt in light of all the evidence: D. (B.), at para. 114. . R. v. Densmore
In R. v. Densmore (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against a "conviction for sexual assault following a judge-alone trial".
Here the court considered W.D. 'reasonable doubt' issues:[21] W.(D.)’s three steps guard against a simple choice between whether the accused or the complainant is more believable by focusing on whether a reasonable doubt arises on the whole of the evidence. This guidance, however, is not a mechanistic straitjacket. Judges are presumed to know the law, they need not recite their reasoning process in detail, and their reasons should not be microscopically parsed for error. Instead, the test for appellate intervention is contextual – whether the reasons, read as a whole and in the context of the record, show that the trial judge incorrectly applied the burden of proof: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 21, 26; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-12. . R. v. Hassan
In R. v. Hassan (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against a "conviction for attempted murder".
Here the court considers the interplay of circumstantial evidence inferences and criminal reasonable doubt:[21] Even if Villaroman applied, that case does not require the Crown to rule out every other conceivable scenario. Instead, it requires the trier of fact to consider whether alternative inferences are reasonable enough to raise a doubt on the evidence: at paras. 42, 56.
[22] Here, the trial judge relied on what the video showed before, during, and after the shot, together with the surrounding circumstances. On the findings he made, he was entitled to conclude that the only reasonable inference was that the appellant fired the shot.
[23] In the circumstances of this case, the absence of forensic evidence did not, without more, provide a reasonable alternative inference. Reasonable doubt does not arise from speculative or merely possible alternatives unsupported by the record: Villaroman, at para. 66. A conviction does not require ballistic testing, recovery of the firearm, or DNA evidence where other reliable evidence establishes guilt. Nor does the presence of other angry individuals in a chaotic scene, without more, give rise to a reasonable alternative explanation when the video shows only one person pointing a gun at the critical moment.
[24] The trial judge acknowledged that he could not see the hands of every participant in the melee. That acknowledgment does not undermine his conclusion. Reasonable doubt does not arise from theoretical possibilities unsupported by the evidence: Villaroman, at para. 66.
[25] The suggestion that another individual may have fired the shot was fully canvassed at trial and rejected. The trial judge was entitled to conclude that the only reasonable inference available on the totality of the evidence was that the appellant was the shooter.
[26] This court is not permitted to reweigh the evidence or to substitute its own preferred inferences. The verdict was one that a reasonable trier of fact, acting judicially, could reach: Villaroman, at para. 50. . R. v. Campbell
In R. v. Campbell (Ont CA, 2026) the Ontario Court of Appeal considers the manner that evidence should be approached when deciding reasonable doubt:[14] The trial judge correctly recognized that this was not a case in which the video evidence stood alone. He did not purport to identify the appellant as the driver beyond a reasonable doubt based solely on the Tim Hortons footage. Rather, he treated the video as one component of a broader circumstantial case.
[15] The trial judge explicitly rejected a piecemeal approach to the evidence. He stepped back and assessed whether the totality of the evidence, viewed through the lens of logic, common sense, and human experience, established guilt beyond a reasonable doubt: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82.
[16] This approach accords with binding authority. Circumstantial evidence need not exclude every speculative or fanciful alternative explanation. It must exclude only reasonable alternatives grounded in the evidence: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 38. The trial judge correctly applied this principle. . R. v. H.P.
In R. v. H.P. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal defendant's appeal, this brought against convictions for "sexual interference, invitation to sexual touching, sexual exploitation, and sexual assault, committed against his stepdaughter, beginning when she was 15 years of age".
Here the court considered the error of finding guilt solely on findings of fabrication, that is of applying fabrication findings as positive circumstantial evidence of guilt:[15] .... It is not an error to conclude that a witness has fabricated evidence, without independent confirmation, when assessing the credibility of the witness. An error occurs only if the trial judge relies on their fabrication finding as circumstantial evidence of guilt, in the absence of independent evidence: R. v. Iqbal, 2021 ONCA 416, 406 C.C.C. (3d) 208, at para. 58. Although the trial judge characterized the appellant’s testimony about the audio recording as “demonstrably false and contrived” and concluded “he fabricated his explanation”, there is no indication that she relied upon these findings as affirmative evidence of his guilt. She used her conclusions, as she was entitled to do, in assessing his credibility.
[16] Likewise, there is no basis for finding that the trial judge relied upon the inconsistencies that she found in the appellant’s testimony as affirmative evidence of his guilt. Again, the trial judge used them in assessing his credibility. . R. v. MacLaughlin
In R. v. MacLaughlin (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "child luring, invitation to sexual touching, making child pornography, criminal harassment, and uttering a death threat".
Here the court considers an argument that the trial judge failed to adequately self-instruct themselves on W.D. 'reasonable doubt' issues:[17] The appellant’s first argument is that the trial judge erred by not specifically instructing himself, in accordance with W.(D.), that the appellant’s exculpatory police statement could raise a reasonable doubt even if the trial judge did not affirmatively believe it, as long as he did not entirely reject it. Such an instruction is often a useful way of explaining one of the practical implications of the Crown’s obligation to prove the accused’s guilt beyond a reasonable doubt. However, W.(D.) 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. T.D., 2024 ONCA 860, at para. 37; R. v. N.P., 2025 ONCA 110, at para. 11. . R. v. T.D.
In R. v. T.D. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, this from convictions "of paired counts of sexual assault and sexual interference in relation to two of the complainants".
Here the court comments on W.D. doctrine regarding reasonable doubt:[37] .... 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. 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.
|
