Rethinking W.(D.)

What an accused says in court is not always believable.  But lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.

A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.

         See R. v. J.H.S., [2008] 2 SCR 152, at para. 8,

Thus, Canada’s highest court propounded the W(D) instruction: what the Court hoped would be a simple, coherent formula to assist juries in understanding and applying the burden and standard of proof in criminal trials where an accused provides exculpatory evidence.

While the Supreme Court of Canada never intended the W(D) instruction to be a magical incantation, those who practice criminal law often recite the three-part instruction as though it were.  

However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial.

          R v Ryon, 2019 ABCA 36 (CanLII), at para. 54.

The W(D) Charge

The W(D) charge on the question of credibility is as follows:

 “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.”

           R. v. W.(D.), [1991] 1 SCR 742, 1991 CanLII 93 (SCC).

Problems with the W(D) Charge

The instruction has always been confusing and to a degree inaccurate if applied verbatim and without explanation.[FN1]  This has made it a fertile source for appellate review.

I will briefly outline a few of the aspects of the W(D) charge that are confusing or misleading, and thus place it somewhat at odds with its purpose. 

“First, if you believe the evidence of the accused, obviously you must acquit.”

• This instruction does not make clear that it applies only to exculpatory evidence, that is, to evidence that either negates an element of the offence or establishes a defence (other than a reverse onus defence). A trier of fact could believe parts of the accused’s evidence – for instance information that does not directly touch the essential elements of the offence – and still be satisfied that the offence has been proven beyond a reasonable doubt.

• An accused may provide exculpatory evidence for the offence charged, which if believed would entitle him to an acquittal; nonetheless, the evidence may support a conviction for an included offence (for instance, an individual that gives evidence that he did not intend to kill may be acquitted of murder but guilty of manslaughter). 

• This instruction does not clearly explain how to deal with the evidence of the accused when he is charged with an objective mens rea offence.  For instance, an accused charged with dangerous driving may give evidence that he did not intend to drive in a dangerous manner, but the mens rea of the offence is whether there was a marked departure from the standard of care of a reasonable person in the circumstances.  Thus, the exculpatory evidence provided by the accused does not necessarily entitle the accused to an acquittal.

“Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.”

This is perhaps the most confusing branch of the W(D) instruction. It is difficult to comprehend, without more, how the evidence of the accused which is disbelieved can raise a reasonable doubt.

A useful explication of this branch is provided by Justice Code in  R. v. Edwards, 2012 ONSC 3373 (CanLII) (sub nom R v. J.E):

"[T]he so-called “second branch” of W.D. does not require a trier of fact to take evidence that has been completely rejected and use it as a basis for finding reasonable doubt.  This is not rational.  The middle ground in W.D. is an “alternative” to complete belief or complete rejection and arises where a trier cannot “resolve the conflicting evidence” and cannot find “exactly where the truth of the matter lay”, as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk.  It refers to a state of indecision or uncertainty where the trier is not “able to select one version in preference to the other”, as Cory J. put it in W.D.S."

Thus, the phrase “but you are left in reasonable doubt by it” can be misleading, as it appears to limit the inquiry into whether the accused’s testimony by itself raises reasonable doubt.  What is required is a consideration of whether reasonable doubt is raised on the entire of the evidence. [FN2]

"[A jury] may accept the evidence, they may reject it, or they may find themselves unsure whether the evidence is true or false. In other words, there is a “third alternative” to confident acceptance or confident rejection and if they find themselves in this middle ground that usually means they have a reasonable doubt that must benefit the accused."

         R v Ryon, 2019 ABCA 36 (CanLII), at para. 38;
         R. v. S. (W.D.), [1994] 3 SCR 521, 1994 CanLII 76 (SCC).

An important function of the W(D) instruction is to impart to juries that when they are provided with conflicting evidence, they are not required to (though they may) accept one version of events and reject another.  However, this is not explicitly stated in the W(D) instruction.

Reformulating W(D)

It is such concerns that has prompted the Court of Appeal for Alberta to take the bold but needed step of reformulating the W(D) charge to impart the following information:

 "(i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. [FN3]

 (ii) In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. [FN4]

 (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit. 

 (iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.

 Finally, where there are included offences or multiple charges, the trial judge must ensure the jury understands that a reasonable doubt with regard to one offence will not necessarily entitle the accused to an acquittal on all charges."

           R. v Ryon, 2019 ABCA 36 (CanLII), at para. 51.

 Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

[FN1] R v Ryon, 2019 ABCA 36 (CanLII)at para. 20; see also David Paciocco, “Doubt about Doubt: Coping with R. v. W. (D) and Credibility Assessment” (2017) 22 C.C.L.R.
[FN2] Writing in dissent in R. v. S. (W.D.), [1994] 3 SCR 521, 1994 CanLII 76 (SCC), Justice McLachlin posited that on the second branch of WD a jury could reject part of the evidence of the accused and still reasonably entertain a doubt as to his guilt based on other parts of the accused's evidence, which the jury did not reject, but either accepted or was undecided about. This position has the benefit of not rolling the second and third branch of the three-part statement into one
[FN3]  Subject to the caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent of the defence.
[FN4] Subject to defences with additional elements such as an objective component.