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In cases that involve opposing versions of the main events, "there is always a danger that the trier of fact will be lured into seeing the issue as one of whether to believe the complainant or the accused": per Wood J.A., speaking for the Court in R. v. K.(V.) (1991), 1991 CanLII 5761 (BC CA), 68 C.C.C. (3d) 18 (B.C.C.A.), at p. 34.
It is imperative on account of this danger that juries be systematically instructed in the clearest of terms on how to deal with the problem.
The underlying principles are at once simple and clear -- to state, if not to apply. Judges who state them can help juries to apply them by framing the rules sequentially.
In making this suggestion, we do not mean to propose that juries be instructed how to deliberate: see Morin and MacKenzie, both previously cited. Our view is that judges should simply lay out the rules in an order that can be easily grasped and retained. One way to do this is by relating them to the elementary principles concerning the presumption of innocence, the burden of proof, and the rule of reasonable doubt.
The main points, where the complainant and the accused have both testified and credibility is an important issue, can be made, for example, in this way:
(1) The defendant in a criminal trial is presumed innocent.
(2) The burden of proof is on the Crown.
(3) This means that the accused does not have to prove his or her innocence. Rather, the Crown must prove that the accused is guilty.
(4) The accused enjoys a right of silence and is not required to testify. When the accused does testify, the burden of proof remains unchanged: the prosecution must still prove that the accused is guilty.
(5) In order to discharge its burden of proof, the prosecution must establish the guilt of the accused beyond a reasonable doubt.
(6) In determining whether this burden has been discharged, the jury must consider all of the evidence.
(7) If the jury, after considering all of the evidence, believes the testimony of the accused, then the accused must be acquitted.
(8) If the jury, after considering all of the evidence, does not believe the testimony of the accused but are left in reasonable doubt by it, the accused must be acquitted.
(9) If the jury, after considering all of the evidence, does not know whom to believe or has a reasonable doubt about whom to believe, they must give the benefit of that doubt to the accused and return a verdict of not guilty.
(10) If, after considering all of the evidence, the jury is not left in doubt by the evidence of the accused, they should ask themselves whether the evidence they do accept satisfies them beyond a reasonable doubt that the accused is guilty. If, and only if, the answer to this question is "yes", should the jury convict the accused.
Our purpose in setting the matter out this way is to illustrate, in paragraphs (1) to (6), one context in which judges might wish to instruct juries on the formula suggested by Cory J. in W.(D.),supra. Paragraphs (7), (8) and (10) simply reproduce that formula, while paragraph (9) incorporates Justice Cory's injunction in W.(D.)[1] with the principle laid down in Nadeau, supra, and reaffirmed in Mackenzie, supra[2]. In this regard, see also R. v. H.(C.W.), supra, at p. 155.
The precise wording of the W.(D.) formula is not mandatory, but as Cory J. stated, at p. 409:
If that formula were followed, the oft-repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
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