R v W (D.)

R. v. W. (D.) [D.W.]

[1991] 1 S.C.R. 742
Supreme Court of Canada — Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. | March 28, 1991

Background

D.W., a 42-year-old man, was charged with sexually assaulting his 16-year-old niece, T.W., on two occasions while she was staying at his home. The complainant testified that during car rides to her boyfriend's house, the accused stopped in remote areas and forced intercourse. The accused testified that nothing happened — he simply drove her to her destination without incident.

The case came down to pure credibility. There was virtually no corroborative evidence: semen stains on the complainant's underwear matched the accused's blood type, but 32% of the population shares that type, and she had spent two nights with her boyfriend during the same period. The trial judge's main charge was correct and fair, lasting about an hour with proper instructions on reasonable doubt.

Issues

1. Whether the trial judge's erroneous recharge constituted reversible error despite correct instructions given minutes earlier
2. How to properly instruct a jury on burden of proof in credibility contests

The Recharge Error

After the main charge, Crown counsel requested a recharge to highlight inconsistencies in the accused's testimony. During this 11-minute recharge — given less than ten minutes after the correct main charge — the trial judge made a critical error. He told the jury the "core issue" was whether they believed the complainant or the accused, creating a false either/or choice.

This instruction was legally wrong because it excluded the crucial third option: the jury could disbelieve the accused but still have reasonable doubt about his guilt after considering all the evidence. The Court established the proper three-part instruction for credibility cases: (1) if you believe the accused, you must acquit; (2) if you don't believe the accused but his evidence leaves you with reasonable doubt, you must acquit; (3) even if the accused's evidence doesn't create doubt, you must still ask whether the Crown has proven guilt beyond reasonable doubt based on the evidence you do accept.

The Supreme Court's Analysis

The majority (Gonthier, Cory and Iacobucci JJ.) acknowledged the error but refused to order a new trial. They emphasized several factors: the original charge was "eminently fair and error free," the recharge came only minutes after correct instructions, it wasn't requested by a confused jury, and the judge had warned jurors not to give special emphasis to any recharge. Most importantly, the judge reminded the jury at the end to be "mindful of all those duties" he had explained — duties that included applying reasonable doubt.

The dissenting judges (Sopinka and McLachlin JJ.) argued the conflicting instructions would leave jurors uncertain which version was correct, especially since the judge characterized the recharge as "better." They emphasized that burden of proof errors are particularly dangerous in credibility contests.

Key Takeaway

Even serious jury instruction errors can be saved if the correct law was clearly explained shortly before and the charge as a whole leaves no doubt about the proper standard.

This case shows that courts will look at the entire charge, timing between instructions, and specific warnings to jurors when deciding whether an error requires a new trial. However, trial judges must be extremely careful with burden of proof instructions, especially in credibility cases.