R. V. W.(D.) - Comments

Comments

Based on Cory's second point, "If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit" (a more contentious point), the jury is essentially told to choose between two conflicting stories. Certainly, if the jury rejected all of the evidence of the accused, it is difficult to see how that very evidence, having been rejected, could raise a reasonable doubt. However, if 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.

In a similar case, R. v. S. (W.D.) 3 S.C.R. 521, it was reiterated that it is erroneous to direct a jury that they must accept the Crown's evidence or that of the defence. Again, to put forth such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other, and yet, on a whole of the evidence, be left with a reasonable doubt. The effect of putting suh a position to the jury is to shift the burden to the accused of demonstrating his presumption of innocence, since the jury might believe that the accused could not be acquitted unless the defence evidence was believed. It is evident that the trial judge erred in the case of W.D., making error in recharge as to the standard of proof required of the Crown. The Court examined whether the error was reversible in light of the correct instructions that had been given to the jury minutes prior to the recharge during the main charge. In other words, the trial judge's error of putting such an either/or proposition to the jury causes the exclusion of a third alternative: 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 reasonable doubt as to his guilt.

Where an error has been made in the instruction of jury members on the burden of proof in a criminal case, the fact that the trial judge correctly instructed the jury on that issue elsewhere in the charge is a strong indication that the jury were not in fact left in doubt as to the burden resting on the Crown.

As Sopinka J. dissented, credibility is a fundamental issue. When dealing with the burden of proof, the trial judge is dealing with the most fundamental rule of the legal game. It is especially important that it be very clear and unequivocal that the prosecution has not proved its case beyond a reasonable doubt if, after considering the evidence of the accused and the complainant together with any other evidence, there is a doubt. The charge absolutely did not make this clear to the jury.

Sopinka noted that the jury were told two things which were in conflict. First, the main charge, in dealing with the credibility of the accused, the Crown could fail to prove their case beyond a reasonable doubt even if the jury had a doubt about the credibility of the accused's story. Then, on the recharge, the Crown would have failed to discharge its onus only if they believed the evidence of the accused. The jury would be uncertain as to which version was correct and it's pure speculation that they would have accepted the first version rather than the second one, which was characterized by the trial judge as "better". This takes on additional significance in light of the statement to the jury that the charge might contain errors that would necessitate a recharge.