R. v. D.W., (1991) 122 N.R. 277 (SCC)

• Judge: Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 01, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 122 N.R. 277 (SCC);1991 CanLII 93 (SCC);3 CR (4th) 302;63 CCC (3d) 397;122 NR 277;[1991] CarswellOnt 80;AZ-91111043;EYB 1991-67602;JE 91-603;[1991] SCJ No 26 (QL);12 WCB (2d) 551;[1991] ACS no 26;46 OAC 352;[1991] 1 SCR 742;[1991] 1 S.C.R. 742

R. v. D.W. (1991), 122 N.R. 277 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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D.W. (appellant) v. Her Majesty The Queen (respondent)

(No. 22170)

Indexed As: R. v. D.W.

Supreme Court of Canada

Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ.

March 28, 1991.

Summary:

The accused was convicted of two charges of sexual assault. He appealed, complaining of an error made by the trial judge in a recharge respecting the standard of proof required of the Crown.

The Ontario Court of Appeal, Brooke, J.A., dissenting, dismissed the appeal. (See endorsement reported at paragraph 6 below). The accused appealed again.

The Supreme Court of Canada, Sopinka and McLachlin, JJ., dissenting, dismissed the appeal.

Criminal Law - Topic 4351

Procedure - Jury charge - Directions regarding burden of proof and reasonable doubt - During the main charge at a sexual assault trial, the judge repeatedly correctly instructed the jury that the Crown had the burden of proving the charges beyond reasonable doubt - After ten min­utes for submissions, when recharging on credibility, the judge er­roneously charac­terized the core issue to be determined by the jury as whether they believed the complainant or the accused - The Supreme Court of Canada held that the error was not fatal because the charge and recharge taken as a whole adequately instructed the jury that if they had a reasonable doubt respecting the accused's guilt, they had to acquit - The court suggested proper instructions.

Criminal Law - Topic 4351

Procedure - Jury charge - Directions regarding burden of proof and reasonable doubt - The Supreme Court of Canada stated that "where an error is made in the instruction on the burden of proof, the fact that the trial judge correctly instructed on that issue elsewhere in the charge is a strong indication that the jury were not left in doubt as to the burden resting on the Crown" - See paragraph 14.

Criminal Law - Topic 4377

Procedure - Jury charge - Directions regarding credibility of witnesses - [See first Criminal Law - Topic 4351].

Criminal Law - Topic 4379

Procedure - Jury charge - Directions regarding credibility of accused - [See first Criminal Law - Topic 4351].

Cases Noticed:

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113; [1987] 4 W.W.R. 193; 57 C.R.(3d) 97, refd to. [para. 8].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181, refd to. [paras. 8, 11, 31].

R. v. MacDonald (J.J.) (1989), 90 N.S.R.(2d) 218; 230 A.P.R. 218; 48 C.C.C.(3d) 230, refd to. [para. 8].

R. v. Challice (1979), 45 C.C.C.(2d) 546 (Ont. C.A.), refd to. [paras. 11, 31].

R. v. Roberts (1975), 24 C.C.C.(2d) 539 (B.C.C.A.), refd to. [para. 14].

R. v. Desveaux (1986), 13 O.A.C. 1; 26 C.C.C.(3d) 88 (C.A.), refd to. [para. 20].

R. v. Lane and Ross (1969), 6 C.R.N.S. 273 (Ont. S.C.), refd to. [para. 22].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 22].

R. v. Nadeau, [1984] 2 S.C.R. 570; 56 N.R. 130, refd to. [para. 31].

Counsel:

David E. Harris, for the appellant;

David B. Butt, for the respondent.

Solicitors of Record:

Carter, McCombs & Minden, Toronto, Ontario, for the appellant;

Ministry of the Attorney General, Toronto, Ontario, for the respondent.

This appeal was heard on February 1, 1991, before Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada. The judgment of the court was rendered in both official languages on March 28, 1991, including the following opinions:

Cory, J. (Gonthier and Iacobucci, JJ., concurring) - see paragraphs 1 to 23; Sopinka, J., dissenting - see paragraphs 24 to 39; McLachlin, J., dissenting - see paragraph 40.