R v W(D)

Cory J's short concurrence in W(D) became the standard jury instruction for cases involving competing testimony — the three-step framework taught in every Canadian criminal-law course.

The accused was charged with sexual assault. The complainant testified to one version of events; the accused denied the assault. The trial judge's instruction on the burden of proof was attacked.

How should the jury be instructed when assessing competing testimony of an accused who testifies?

New trial ordered. The instruction risked communicating that the jury had to choose between accused and complainant — a credibility contest.

The W(D) instruction: (1) If you believe the accused, you must acquit. (2) If you do not believe the accused but are left in reasonable doubt by the accused's evidence, you must acquit. (3) Even if you are not left in doubt by the accused's evidence, you must consider the rest of the evidence and decide whether you are satisfied beyond a reasonable doubt of guilt.

Cory J emphasised that credibility cases are not credibility contests. The Crown must prove guilt beyond a reasonable doubt — the accused need not prove innocence. The three-step formulation prevents the jury from collapsing the burden into a binary choice between two narratives.

The most-given jury instruction in Canadian criminal trials. Subsequent cases (Vuradin, RP v R) emphasise that perfect adherence to the wording is not required; what matters is that the instruction conveys the substance of the burden of proof.

R v W(D), [1991] 1 SCR 742, 1991 CanLII 93 (SCC).

Lamer CJ, Wilson J, La Forest J, L'Heureux-Dubé J, Sopinka J, Gonthier J, Cory J, McLachlin J, Stevenson J