Court of Appeal for Ontario

Date: 2018-11-21 Docket: C62022

Judges: Hoy A.C.J.O., Watt J.A. and Then J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Megan Bacci Appellant

Counsel

Gregory Lafontaine and Ricardo Golec, for the appellant

Dena Bonnet, for the respondent

Heard

September 14, 2018

On Appeal

On appeal from the conviction entered on March 3, 2016 by Justice J. McCarthy of the Superior Court of Justice, sitting with a jury.

Decision

Then J. (ad hoc):

[1] Introduction

[1] Megan Bacci ("the appellant") appeals her convictions on two counts of impaired operation causing bodily harm contrary to s. 255(2) of the Criminal Code R.S.C. 1995, c. C-46, as am., two counts of driving over 80 causing bodily harm contrary to s. 255(2.1) of the Criminal Code, and two counts of dangerous driving causing bodily harm contrary to s. 249(3) of the Criminal Code. These convictions relate to the injuries suffered by two female passengers when the motor vehicle driven by the appellant overturned after the appellant failed to negotiate a curve and had left the roadway.

[2] The appellant contends that the trial judge erred in his initial charge to the jury in formulating the direction suggested by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742 with respect to the statement made by the appellant purporting to explain the cause of the crash. The appellant also submits that the trial judge not only failed in his recharge to correct his initial error, but also made further substantial errors that necessitate a new trial.

[3] I agree with the appellant that the convictions on all counts must be quashed and a new trial ordered, with respect to errors in the manner in which the trial judge dealt with the direction suggested in W.(D.) in the recharge.

Background Facts

[4] As there is to be a new trial it will only be necessary to briefly outline those facts pertinent to an understanding of the ground of appeal.

[5] On the long weekend of May in 2012, the appellant and four girlfriends attended at her family cottage. On May 19, a designated driver drove them to Wasaga Beach, where they visited a local bar for part of the afternoon. On their return to the appellant's cottage, they had dinner and decided to go out for the evening. The crash occurred shortly after 8:00 p.m. as the appellant drove her four friends back to Wasaga Beach for the evening.

[6] Alexandra Jones witnessed the accident which resulted in the appellant's charges. She testified that at the time of the crash it was still light outside, it was clear and dry and that the road was paved. She observed a beige car travelling southbound towards her swerve across the dividing line into her lane, causing her to pull off the roadway in order to avoid a collision with the beige car. Ms. Jones heard a screeching sound and observed that the beige car had left the road and had flipped over. With the assistance of two men who arrived on the scene, Ms. Jones rendered assistance to the occupants of the beige car, two of whom suffered significant injuries. The appellant appeared uninjured when she left the car and began to text as she walked around. Ms. Jones testified that she concluded the appellant was the driver because she heard her say "I don't know what happened, my car just lost control."

[7] The Crown adduced the statement of the appellant as part of its case at trial. The appellant did not testify.

[8] All four passengers testified at trial. None of them was paying attention to the appellant's drinking that day, although one passenger testified that she saw the appellant drinking at the bar and another testified that she saw the appellant with a drink in her hand at the bar. Each of the passengers testified that they had consumed alcohol in the morning, at the bar or at dinner.

[9] At the scene, Officer Laurin observed that the appellant's eyes were glassy and slightly bloodshot, although no issues were observed with the appellant's motor abilities. Officer Laurin also noticed the odour of alcohol on the appellant's breath.

[10] Similar observations were made at the police station by Officer Kukkonen, a qualified breath technician. He administered two breath tests to the appellant which produced readings of 159 milligrams of alcohol per 100 milliliters of blood and 161 milligrams of alcohol per 100 milliliters of blood, respectively.

[11] With respect to the cause of the crash, none of the passengers expressed any concern as to the appellant's manner of driving prior to the crash. Only one of the passengers, Hayley Smith, could assist with respect to the details of the crash itself. She testified that they were probably speeding a little bit and that they were having a good time listening to music, which was playing loudly on the radio, and singing as they approached a big curve. She stated that the appellant hit gravel and that she could not control the wheel and that was when the accident took place.

[12] Officer McLaughlin was called as an expert witness on collision reconstruction. He inspected the appellant's vehicle several weeks after the accident and after it had been removed from the scene. He testified that the appellant's vehicle had a worn shock absorber, which could have existed prior to impact. He testified that a bent or worn shock absorber, tracking bar and/or wheel assembly could cause the car to go out of control. He accepted that it was a "probability, even if it's a low probability" that prior damage to the shock absorber or control arm could have caused the accident. However, his expert testimony was that there was no mechanical failure that caused the crash.

The Position of Counsel at Trial

[13] In the charge to the jury, the trial judge related a summary of the positions both counsel had provided to him.

[14] With respect to the counts relating to the consumption of alcohol, the trial judge summarized the Crown's position as follows:

The accident happened because Megan Bacci's ability to operate the Sebring was impaired by alcohol. Mechanical issues had nothing to do with the vehicle leaving the road.

Megan Bacci's perception and judgment were affected by the alcohol in her body and she was not able to react to the changes in the road.

[15] With respect to the counts alleging dangerous driving, the position of the Crown was that the manner of driving in which alcohol was a factor caused the accident and that "mechanical failure does not explain the Sebring leaving the road".

[16] The defence position with respect to the charges before the court was that the Crown had failed to prove that either impairment by alcohol, or the manner of the appellant's driving, caused the accident for five reasons.

[17] The first reason advanced by counsel was summarized by the trial judge as follows:

One, the Crown has failed to prove that Megan Bacci's driving was a significant cause of the accident involving her car and her friends on May 19th, 2012. You have heard evidence from the Crown's own expert witness there is an equal possibility that the accident happened due to a mechanical failure notwithstanding his rigid position. More importantly Officer McLaughlin could not rule out the accident occurred due to a mechanical failure. This is a real factor to the accident and raises a reasonable doubt.

[18] The fifth reason, which bears on defence counsel's interpretation of the appellant's explanation to Ms. Jones of the cause of the accident, was summarized by the trial judge as follows:

Five, the fifth and most important reason Megan Bacci is innocent is that you heard the words of Megan Bacci. They were clear, concise and correct. You heard evidence from Ms. Jones that the car made a screeching noise. This is a crucial fact that it's not [sic] been explained away, because it cannot be explained. The screeching noise you can infer came from the traction bar scraping against the roadway and that car just lost control.

[19] It is against this factual background and the positions taken by counsel in their closing addresses and in their respective written summaries of their position that the trial judge gave the jury the W.(D.) direction.

The Grounds of Appeal

[20] The appellant outlined several grounds of appeal in her factum. In argument, counsel advanced only the ground that the trial judge erred in his W.(D.) instruction to the jury, both in the main charge and in the recharge to the jury, in relation to the statement made by the appellant to Ms. Jones to the effect: "I don't know what happened. The car just lost control."

A. The Charge

[21] In his charge to the jury, the trial judge gave the following instruction:

I want to mention one particular piece of evidence you heard because it is deserving of special treatment according to the law.

[1] You heard from Alexandra Jones that she heard Megan Bacci state at the accident scene, "I do not know what happened. My car just lost control." If you believe that this what was reported by Alexandra Jones was in fact said by Megan Bacci and if you accept Megan Bacci's explanation that her vehicle just lost control and you find this lose [sic] of control was caused entirely by mechanical failure, you must find Megan Bacci not guilty of impaired operation causing bodily harm, operation of a motor vehicle with a blood alcohol concentration of over 80 causing bodily harm and dangerous driving causing bodily harm. You might still find her guilty of the lesser included offences in counts 1 through 4. Even if you do not accept that Megan Bacci said what was reported by Alexandra Jones or accept Megan Bacci's explanation for what happened or accept the lose [sic] of control was caused entirely by mechanical failure, if it leaves you with a reasonable doubt about whether Megan Bacci caused the accident and the accompanying bodily harm, you must find her not guilty of those offences because the Crown would have failed to prove an essential element, that is causation of those offences beyond a reasonable doubt. You may still, however, find her guilty of the lesser and included offences in counts 1 through 4.

[2] Even if the evidence does not leave you with a reasonable doubt about whether Megan Bacci caused the accident, you may convict Megan Bacci only if the rest of the evidence that you do accept proves her guilt on that essential element of causation beyond a reasonable doubt.

[22] The appellant contends that the trial judge made two errors in his initial charge:

1. The trial judge erred by adding an exculpatory interpretation to the statement made by the appellant; and

2. The trial judge erred by misstating the standard of causation, in instructing the jury that the loss of control must be "entirely caused by mechanical failure" (emphasis added).

(1) Adding an Exculpatory Interpretation

[23] The appellant says that the trial judge should only have instructed the jury that it must acquit if the jury believed the appellant's statement that the vehicle lost control. The appellant contends that the inclusion of the additional requirement that the jury find that the loss of control was entirely caused by mechanical failure served to add an additional step not contemplated by W.(D.). The appellant submits that the trial judge erred in subjecting the exculpatory explanation contained in the appellant's statement to a higher degree of scrutiny than was appropriate.

[24] The Crown argues that the appellant's statement to Ms. Jones was properly the subject of a modified W.(D.) instruction. The Crown submits it is incorrect, as the appellant contends, that an acquittal would follow "if the statement was believed" in the circumstances of this case because, unlike the situation where a statement is clearly exculpatory on its face, the statement of the appellant is not obviously exculpatory in nature. While one interpretation of the appellant's statement is exculpatory, this was not the only interpretation, as a vehicle may lose control for many reasons, one of which could be impairment of its operator based on the evidence in this case. Accordingly, the Crown submits that the trial judge properly focused on mechanical failure as the exculpatory interpretation of the appellant's statement in line with the defence theory of the case, based on the evidence favourable to the defence, in order that the jury fully appreciate the exculpatory nature of the statement in the context of all the evidence.

[25] The Crown submits that the approach of the trial judge aligns with the guidance of this court in R. v. B.D., 2011 ONCA 51, O.J. No. 198, where, at para. 114, the court stated:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt. In that event, they must acquit. (Citations omitted.)

[26] In my view, the trial judge did not err in his instruction on W.(D.) in his initial charge to the jury.

[27] In R. v. J.H.S., 2008 SCC 30, 2 S.C.R. 152, the Supreme Court succinctly stated the purpose of the W.(D.) instruction at paras. 8-9:

Essentially, W (D.) simply unpacks for the benefit of the lay jury what reasonable doubt means in the context of evaluating conflicting testimonial accounts. It alerts the jury to the "credibility contest" error. It teaches that the trial judges are required to impress on the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.

[28] Moreover, it is well established that the trial judge need not employ any particular language in providing a W.(D.) instruction, so long as these concepts are articulated in a fashion that assures the jury will understand them. In B.D., at para. 103, this court stated:

W.(D.) itself, and subsequent authorities, make it clear, however, that W.(D.) does not set out a slavish formula; what is important is that the jury understand the burden and standard of proof and their application. As Cory J. said in W.(D.), at p. 758:

[T]he failure to use such language is not fatal 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.

[29] In circumstances where the appellant did not testify and where her statement is not clearly exculpatory, I fail to appreciate how the trial judge can be faulted for instructing the jury how the statement could be interpreted as exculpatory. In doing so the trial judge did not cause the jury to give extra scrutiny to the defence evidence, but emphasized for the jury the interpretation of the statement that the defence in his address had argued was exculpatory based on the evidence. The approach of the trial judge was well within the purpose of the W.(D.) direction and inured to the benefit of the accused. I would not give effect to this alleged error in the trial judge's W.(D.) instruction to the jury.

(2) Misstating the Standard of Causation

[30] The second error alleged by the appellant in respect of the instruction on W.(D.) in the initial charge related to the use of the word "entirely" as it relates to causation. The appellant submits that the use of the word "entirely" does not adequately encapsulate the standard of causation that would have applied to the charges presented to the jury.

[31] In my view, the trial judge did not err in instructing the jury on the first branch of his W.(D.) instruction that the appellant was entitled to an acquittal if the jury found that the loss of control was "entirely caused by mechanical failure", as the appellant was entitled to an acquittal on the basis of that finding. Had that instruction been the only instruction given to the jury, the jury may have been left with the impression that this was the only way in which an acquittal was available and that the onus of proof was on the appellant to establish that the accident was entirely caused by mechanical failure. The appellant was also entitled to an acquittal, even if the jury found the loss of control was not entirely caused by mechanical failure, if the evidence of mechanical failure raised a reasonable doubt or if the Crown failed to prove that the impairment was a significant contributory cause of the loss of control.

[32] The Crown submits that any deficiency with respect to the issue of causation on the first branch of the instruction on W.(D.) was cured by the instruction given on the second and third branches of the trial judge's W.(D.) instruction.

[33] I agree with the Crown that the second and third branch of the trial judge's instruction on W.(D.) make it clear that even if the accident were not entirely caused by mechanical failure an acquittal was possible if the evidence of mechanical failure raised a reasonable doubt or if the Crown failed to prove on the basis of the evidence which they accept the guilt of the deceased beyond a reasonable doubt.

[34] Moreover, in order to determine whether the W.(D.) instruction was adequate on the issue of causation, it is necessary to assess the instruction on W.(D.) in the context of the charge as a whole and in particular in the context of the specific instruction of the trial judge on the issue of causation with respect to the offences of impaired driving causing bodily harm, driving over .08 causing bodily harm and dangerous driving causing bodily harm.

[35] With respect to the two counts of impaired driving causing bodily harm, after correctly instructing the jury as to the elements of the offence, the trial judge stated:

Crown counsel does not have to prove that Megan Bacci meant to cause bodily harm to Amber Crawford or Ashley Cius or to anybody else by the manner or condition in which she drove the motor vehicle. Crown counsel does not have to prove that Megan Bacci's impaired ability to operate a motor vehicle was the only or even the principal cause of what happened to Amber Crawford and Ashley Cius.

Crown counsel must prove beyond a reasonable doubt that the impairment of Megan Bacci's impaired ability [sic] to operate a motor vehicle was a significant contributing cause of what happened and the bodily harm suffered. If you are not satisfied beyond a reasonable doubt that Megan Bacci's impaired ability to operate a motor vehicle caused bodily harm to Amber Crawford and Ashley Cius, you must find Megan Bacci not guilty of impaired operation of a motor vehicle causing bodily harm on both counts, but guilty of impaired operation of a motor vehicle simpliciter. That's a lesser and included offence in counts 1 and 3 that I alluded to and explained earlier.

[36] With respect to the two counts of .08 causing bodily harm, the trial judge stated:

Crown counsel does not have to prove that Megan Bacci meant to cause bodily harm by the manner or condition in which she drove the motor vehicle. Crown counsel does not have to prove that Megan Bacci was the only or even principal cause of what happened to Amber Crawford and Ashley Cius. Crown counsel must prove that Megan Bacci was a significant contributing cause of the accident in which Amber Crawford and Ashley Cius suffered bodily harm.

If you not satisfied beyond a reasonable doubt that Megan Bacci was a significant contributing cause of the accident causing bodily harm to Amber Crawford and Ashley Cius, then you must find her not guilty of the over 80 operation of a motor vehicle causing bodily harm, but guilty of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.

[37] With respect to the two counts of dangerous driving causing bodily harm:

Dangerous operation of a motor vehicle involves more than just carelessness. Crown counsel must satisfy you beyond a reasonable doubt that Megan Bacci's driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances. What you have to decide, in all the circumstances is not what Megan Bacci meant to do, but rather, whether Megan Bacci drove in a manner that was a marked departure from the manner in which a reasonable, prudent driver would do in the same circumstances. It is the manner in which Megan Bacci was driving on which you must focus.

Crown counsel does not have to prove that Megan Bacci meant to cause bodily harm to Amber Crawford and Ashley Cius, or to anybody else by the manner in which she drove. If you are not satisfied beyond a reasonable doubt that Megan Bacci's operation of the motor vehicle caused Amber Crawford and Ashley Cius bodily harm, you must find Megan Bacci not guilty of the dangerous

[38] I am satisfied that viewed in the context of the charge as a whole, the charge on W.(D.) was adequate to convey to the jury that they were not engaged in a credibility contest, but that in the circumstances of this case, burden was on the Crown to prove beyond a reasonable doubt that impairment by alcohol was a significant contributory cause of the victims' injuries with respect to all counts. Moreover, I am satisfied that the jury would have understood that even if they did not accept the explanation of the appellant that the accident was entirely caused by mechanical failure, they could nevertheless acquit if in the context of all of the evidence the explanation of the appellant gave rise to a reasonable doubt, or if the Crown failed to prove that impairment was a significant contributory cause of the accident. In my view, the instruction on W.(D.) in the main charge was adequate. Accordingly, I would not give effect to the ground of appeal with respect to the initial charge to the jury on W.(D.).

B. The Recharge

[39] After the charge to the jury had been delivered, defence counsel renewed his objection to the trial judge's instruction on W.(D.) with respect to the appellant's statement. The trial judge agreed to correct his original instruction and at the conclusion of his recharge on other matters instructed the jury as follows:

The one last area I want to mention the one particular piece of evidence you heard because it deserves special treatment and that's what Megan Bacci said that what Alexandra Jones stated that she heard that is, "I do not know what happened, my car just lost control."

I want to repeat this to you. If you believe that what was reported by Alexandra Jones was in fact said by Megan Bacci, and if you accept Megan Bacci's explanation given to Alexandra Jones that her vehicle just lost control, and you find that this lost [sic] of control that is referred to was not caused by her in any way then you must find Megan Bacci not guilty of impaired operation causing bodily harm, operation of a motor vehicle with a blood alcohol concentration over 80 thereby causing bodily harm and dangerous driving causing bodily harm. You might still find her guilty of the lesser and included offences of 1through 4.

So "I do not know what happened, my car just lost control", that is from Alexandra Jones about what Megan Bacci said. So one, you have to consider whether you believe that what Alexandra Jones said was in fact said by Megan Bacci. You have to accept that that's Megan Bacci's explanation that the vehicle just lost control, you have to accept that explanation by her and you have to find that this loss of control that's alluded to, that's referred was not caused by her any way, the lost [sic] of control of the vehicle was not caused by her in any way.

If you find those three things then you must find her not guilty on counts 1through 6. You still may find her guilty of the lesser and included counts, charges in counts 1 through 4.

I hope that's cleared it up. If not, I'm sure you will have a question but you're free to go now.

[40] The appellant submits that the recharge on the initial W.(D.) instruction did not correct the initial error in adding an exculpatory interpretation to the appellant's statement. Secondly, the appellant submits that the trial judge did not properly contextualize the recharge and identify that he was correcting a previous error and, thirdly, the appellant submits that the trial judge did not address further the second or third branch of the W.(D.) instruction in the recharge (i.e. if the statement was disbelieved but raised a reasonable doubt, or if the statement was disbelieved and the rest of the evidence raised a reasonable doubt, the jury must acquit.).

1. Adding an Exculpatory Interpretation

[41] In the recharge, the trial judge purported to correct the first branch of the instruction he had given in his charge as to the application of W.(D.) to the statement of the appellant. The trial judge substituted the requirement that the jury find that the loss of control referred to in her statement "was not caused by her in any way" for his initial formulation "was caused entirely by mechanical failure." The appellant renewed his objection that the trial judge should only have referred to the precise statement of the appellant and not have provided his interpretation of how the statement was rendered exculpatory.

[42] As I have explained, the trial judge did not err in providing an exculpatory interpretation of the appellant's statement in circumstances where her statement was not clearly exculpatory, provided that the interpretation was consistent with the defence theory of the case, based on evidence favourable to the appellant. In the circumstances of this case it was available to the trial judge to interpret the loss of control referred in the appellant's statement as "not caused by her in any way", in order to provide an exculpatory dimension to the statement. That interpretation, although more general than his previous interpretation, is also consistent with the defence theory of the case and based on evidence favourable to the defence. There is no error with respect to the correction of the first branch of W.(D.) in the recharge.

2. The Trial Judge Did Not Properly Contextualize the Recharge and Identify He Was Correcting a Previous Error

[43] In the recharge the trial judge purported to correct an error in his treatment of the statement made by the appellant to Alexander Jones to the effect that "I do not know what happened, my car just lost control." In his initial charge he dealt with all three branches of W.(D.) and, in particular, stated with respect to the first branch that the loss of control alluded to in her statement required a finding by the jury that the loss of control "was caused entirely by mechanical failure." In the recharge the trial judge stated that "you have to find that this loss of control that's alluded to, that's referred was not caused by her any way, the lost [sic] of control of the vehicle was not caused by her in any way."

[44] In the recharge the trial judge did not identify the precise error he was correcting. Presumably, he was instructing the jury with respect to the first branch of W.(D.) and indicating that they were not to find that the loss of control was "caused entirely by mechanical failure" but rather that the loss of control was "not caused by her in anyway." The trial judge said nothing with respect to the second and third branch of W.(D.). Accordingly, it would not have been clear to the jury whether the instruction on the second and third branches were still applicable or whether that instruction also was in need of correction. In my view, the manner in which the trial judge in his recharge sought to correct an error in his charge resulting from an objection by counsel for the appellant was inadequate and served only to confuse the jury.

[45] In order to avoid such confusion, the trial judge was obliged to link the correction of the purported error in the charge to the correction in the recharge. The trial judge should first have referred the jury to the subject matter of his charge, (i.e. the W.(D.) instruction) and identified the precise error in his charge and explained the correction.

[46] Had he done so, the trial judge may not have omitted to deal with the second and third branches of W.(D.). In the circumstances of this case I agree with the appellant that it is impossible to glean if the jury properly understood the W.(D.) instruction in view of the manner in which the trial judge purported to correct the error in his charge by recharging the jury.

3. The Failure to Instruct on the Second and Third Branch of W.(D.)

[47] I have found that the trial judge did not err in the recharge by instructing the jury on the first branch of W.(D.) that the appellant was entitled to an acquittal if the jury found that the loss of self-control was "not caused by her in any way", as the appellant was entitled to an acquittal on that basis. Unfortunately, that was the only instruction the jury received on the application of W.(D.) in the recharge.

[48] The appellant was entitled to an instruction on W.(D.) – namely, that even if the jury did not accept her explanation that she did not cause the accident in any way and found that she did cause the accident in some way, she was nevertheless entitled to an acquittal if her explanation that she did not cause the accident in any way was not accepted but raised a reasonable doubt or if the Crown failed to prove that impairment was a significant contributory cause. It is precisely the second and third branches of W.(D.) that bring home to the jury that an acquittal is warranted even if the statement is disbelieved but raises a reasonable doubt or if the statement is disbelieved and the rest of the evidence raises a reasonable doubt. The trial judge failed to provide the instruction which is at the very heart of the W.(D.) direction.

[49] As stated by Doherty J.A. in R. v. Bucik, 2011 ONCA 546, O.J. No. 3545, at para. 33:

The lesson from R. v. W (D.), [1991] 1 S.C.R. 742 (S.C.C.), is that assessments of the credibility or reliability of exculpatory evidence in a criminal case do not raise either/or choices, but must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt. An instruction to the jury to the effect that exculpatory evidence can be the source of a reasonable doubt even if not affirmatively believed is particularly important because it is arguably not the kind of common sense reasoning that jurors would apply in making credibility assessment in their day-to-day lives.

[50] The omission of the second and third branches of the W.(D.) instruction constitutes non-direction amounting to misdirection with respect to a crucial aspect of the defence and does not appropriately reflect the burden of proof on the Crown with respect to the pivotal element of causation.

[51] The Crown does not invoke the curative proviso pursuant to s. 686(1)(b)(iii) of the Criminal Code. However, the Crown concedes that it would have been preferable had the trial judge included the second and third branches of the W.(D.) instruction in the recharge. The Crown contends that the omission is not fatal, having regard to the charge as a whole and in particular to the fact that the jury was adequately instructed with respect to the W.(D.) direction in the main charge. A similar argument was raised in R. v. S. (W.D.), [1994] 3 S.C.R. 521 and rejected. In that case the appellant argued that the trial judge seriously erred in that the second and third branches of the W.(D.) direction had not been put to the jury in the recharge. Cory J. stated, at p. 536:

It has been seen that the directions on the recharge on this vitally important issue were in error. Nonetheless, it was argued by the respondent that the charge must be looked at as a whole, and in light of the correct instructions given at the time of the main charge that the error in the recharge does not constitute a ground for directing a new trial. It was argued that the case of R. v. W. (D), supra, supported the position of the respondent. I cannot agree with that contention.

[52] While in S.(W.D.) the error in the recharge occurred as a result of a question from the jury rather than as a result of an objection by defence counsel, I see no reason to accept the Crown's argument in the circumstances of this case because of that distinction. The statement of the appellant encapsulates the essence of the defence in this case. It was central that the jury be properly instructed with respect to the direction in W.(D.). In my view, the omission of the second and third branches of the W.(D.) direction constitutes serious non-direction amounting to misdirection with respect to a critical aspect of the defence. Moreover, the omission of the second and third branch of the W.(D.) does not appropriately reflect the burden of proof on the Crown with respect to causation which was a pivotal issue with respect to each of the charges against the accused.

[53] In these circumstances the jury is entitled to instructions which were clear, correct and comprehensive, as S.(W.D.) mandates. Unfortunately, the last word that the jury heard was an incorrect and incomplete instruction on critical issues.

[54] I would give effect to this ground of appeal.

[55] I would allow the appeal, quash the convictions and order a new trial.

Released: November 21, 2018

"Edward Then J. (ad hoc)"

"I agree. Alexandra Hoy A.C.J.O."

"I agree. David Watt J.A."