Testimony of Person Charged (The W. (D.) Instruction)

9.6 Testimony of Person Charged (The W. (D.) Instruction)

(Last revised June 2012)

[1] You have heard (NOA) testify. When a person charged with an offence testifies, you must assess that evidence as you would assess the testimony of any other witness, keeping in mind my instructions to you earlier about the credibility of witnesses. You may accept all, part, or none of (NOA)’s evidence.[2]

[2] Of course, if you believe the testimony of (NOA) that s/he did not commit the offence charged, you must find him/her not guilty.

[3] However, even if you do not believe the testimony of (NOA), if it leaves you with a reasonable doubt about his/her guilt (or, about an essential element of the offence charged (or, an offence)), you must find him/her not guilty (of that offence).

In “he said/she said” cases it has been suggested in R. v. C.W.H. (1991), 68 C.C.C. (3d) 146 (B.C.C.A.) that the following instruction be added:

If you don't know whom to believe, it means you have a reasonable doubt and you must find (NOA) not guilty.

[4] Even if the testimony of (NOA) does not raise a reasonable doubt about his/her guilt, (or, about an essential element of the offence charged (or, an offence)), if after considering all the evidence you are not satisfied beyond a reasonable doubt of his /her guilt, you must acquit.

[1] R. v. W. (D.), [1991] 1 S.C.R. 742. This instruction is appropriate where the evidence of the accused constitutes a complete defence to the offence charged. Where the testimony of the accused would only lead to a guilty verdict on an included offence based on, for example, intoxication or provocation, this instruction will need to be modified.

[2] It must not be suggested to the jury that they can assume that the accused, by virtue of his/her status as the accused, would lie to escape conviction, as this undermines the presumption of innocence: R. v. Laboucan, [2010] 1 S.C.R. 397, at paras 14-18.