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ACCUSED TESTIFIES

When an accused person testifies, special rules apply to the consideration and weighing of that testimony.  The Supreme Court of Canada created the WD Rule, so called:


R. v. W.(D.), [1991] 1 S.C.R. 742 CL ii


                 Where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.  The trial judge should instruct the jury that:

 

(1) if they believe the evidence of the accused, they must acquit;


(2) if they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit;


(3) even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept.  


The failure to use such language may not be fatal, however, if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply.

Jim O'Neil, LL.B.

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