R. v. C.L., 2020 ONCA 258

W(D) INSTRUCTION - JJRD INSTRUCTION - JURY DIRECTION

KEY TAKEAWAY: a JJRD instruction has nothing to do with a W(D) direction, adds nothing to it and may even be misleading (Para 34).

What is a W(D) instruction?

A W(D) jury instruction is intended to explain the reasonable doubt standard in the context of assessing conflicting testimonial accounts. The direction provides the trier of fact with three states of belief they may arrive at after evaluation the credibility and reliability of the conflicting evidence, and directs the trier of fact ot the outcomes that flow from each of those general states of belief.

That instruction provides (R v W(D), [1991] 1 SCR 742 at p 758): 

(1) If you believe the evidence of the accused, you must acquit.

(2) If you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit.

(3) 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 you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.

What is a JJRD instruction?

Although R v JJRD (2006), 215 CCC (3d) 252 (Ont CA),  was not a jury instruction case, a JJRD instruction refers to Doherty JA’s statement that “an outright rejection of an accused’s evidence based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much as an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified the way the accused testified or the substance of the accused’s evidence.”

In other words, JJRD purports that a proper conviction can be arrived at even where exculpatory testimony has no obvious flaws, if the Crown has a strong case.

What You Need to Know

The “considered and reasoned acceptance” language of JJRD has no place in a W(D) jury instruction. JJRD was concerned with whether the reasons of a trial judge, sitting alone, were sufficient to permit appellate review, it was not concerned with jury instructions. A JJRD instruction is directed at appellate courts, not jurors, to determine whether the TJ’s reasons provide a considered and reasoned pathway to conviction.

Using the language from JJRD in a W(D) direction risks creating an uneven charge. The traditional W(D) formula, although not a magic incantation, functions by instructing jurors on the implications of the potential alternative conclusions that can arise from their credibility assessments (where there is conflicting exculpatory and inculpatory evidence). The language from JJRD on the other hand describes a mode of reasoning.