Judge must raise concept of reasonable doubt and W.(D.) when credibility findings required on a "vital issue" even without accused testifying

R. v. King, 2013 ONCA 417 holds:

[11]       In W.(D.), at pp. 757-758, Cory J. set out what is now the commonly-used jury instruction on reasonable doubt:

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 a 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 the evidence of the guilty of the accused.

[12]       Post-W.(D.), there was uncertainty as to whether the W.(D.) instruction was required beyond cases where the accused testifies and his or her evidence conflicts with that of prosecution witnesses.

[13]       In R. v. B.D., 2011 ONCA 51, 271 O.A.C. 241, this court resolved the uncertainty. At para. 114, Blair J.A., for the court, concluded that the principles underlying W.(D.) have a “broader sweep”. Where credibility findings must be made on a ”vital issue” concerning which there is conflicting evidence favourable to the accused, whether raised by the Crown or defence, the trial judge must relate the concept of reasonable doubt to those credibility findings. 

[14]       In the appellant’s statements to the police, she made a series of exculpatory comments. She repeatedly told the police that she did not “do it” and that “it was not [her] . The appellant submits that, based on B.D., a W.(D.) instruction was required.