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 t...