Credibility and Reasonable Doubt

The principles established in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). have an entrenched place in Canadian criminal law.

In W.(D.), the Supreme Court of Canada considered the manner in which a jury should be charged on the principle of reasonable doubt. Justice Cory, writing for the court, suggested that in a criminal case where credibility is the central issue and the accused testifies, the jury charge should include the following instruction in order to ensure that, as the trier of fact, the jury remains focused on reasonable doubt:

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.

Unfortunately some misunderstood W.(D.) to mean that a form of language had to be followed by a court considering credibility and reasonable doubt and any variation from that form would be a reversible error.

Today’s Court of Appeal decision in R. v. Sparrow, 2008 ONCA 616 emphasizes it is not the form but the substance of W.(D.) that must be followed. The Court writes:

[53] The trial judge was not obliged to adopt any particular structure in fashioning his reasons or a specific order in reviewing the evidence adduced at trial. Nor was he required to articulate the W.(D.) principles at each stage of his analysis of the evidence. Moreover, the jurisprudence of the Supreme Court of Canada confirms that the steps identified in W.(D.) need not be religiously followed or articulated… .What is required is that the trier of fact remain focused on the paramount question, namely, whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused … .