More on the W.(D) Instruction


The principles underlying W.(D.) are not confined to only those cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses.  Rather—

 “Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.”

R. v. B.D., 2011 ONCA 51, 273 O.A.C. 241, at para 114.

The purpose of a W.(D.) instruction is to bring home to the jury that, in the face of conflicting evidence, the paramount question for their determination is whether, on the whole of the evidence, the jury is left with a reasonable doubt about the accused’s guilt. 

 R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6, citing R. v. Morin, [1988] 2 S.C.R. 345, at para. 361. 

 For this reason, the analytical steps outlined in W.(D.) are intended to ensure that the jury remains focused on the principle of reasonable doubt.

C.L.Y., at para. 6.

In some cases it may constitute an error for the trial judge to confine the W.(D.) instruction to the accused’s testimony.

R. v. Kirlew, 2017 ONCA 171, at para. 19.

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