R. v. W.D.S. (1994), 157 A.R. 321 (SCC);

    77 W.A.C. 321

MLB headnote and full text

[French language version follows English language version]

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


W.D.S. (appellant) v. Her Majesty the Queen (respondent)


Indexed As: R. v. W.D.S.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L’Heureux-

Dubé, Sopinka, Cory, McLachlin

and Major, JJ.

October 20, 1994.


The accused was charged with two counts of sexual assault. The alleged victims were his twin nieces. Following trial by judge and jury, the accused was convicted on one count and acquitted on the other. The accused appealed the conviction on the grounds that the trial judge erred in recharging the jury on the issue of reason­able doubt and that the verdict was unrea­sonable and unsupported by the evidence.

The Alberta Court of Appeal, McClung, J.A., dissenting, dismissed the appeal. The accused was granted leave to appeal on the issue of recharging the jury on reasonable doubt.

The Supreme Court of Canada, L’Heu­reux-Dubé and McLachlin, JJ., dissenting, allowed the appeal, set aside the conviction and ordered a new trial. The trial judge misdirected the jury in recharging them on reasonable doubt and the original correct jury charge did not rectify the error.

Criminal Law – Topic 4336.5

Procedure – Jury – The law – Questions by jury – [See second
Criminal Law – Topic 4391.2

Criminal Law – Topic 4351

Procedure – Jury charge – Directions regarding burden of proof and reasonable doubt – The sole evidence in a sexual assault case was the accused’s and com­plainant’s testimony – The trial judge correctly charged the jury on reasonable doubt – However, after deliberating for four hours, the jury advised that they were “hung up” and needed redirection on “evi­dence and reasonable doubt” – The trial judge misdirected the jury, leading them to believe they had to choose between the accused’s and complainant’s testimony – That precluded an acquittal where the jury misbelieved the accused, but still had a reasonable doubt as to guilt on the whole of the evidence – The Supreme Court of Canada ordered a new trial, stating that “a faultless original charge cannot as a rule rectify a significant mistake made on the recharge” – No matter how exemplary the original charge was, four hours had passed and the jury obviously forgot or were confused as to the original directions re­specting reasonable doubt – Accordingly, they needed to be correctly and compre­hensively recharged on the issue.

Criminal Law – Topic 4377

Procedure – Jury charge – Directions re credibility of witnesses – [See
Criminal Law – Topic 4351

Criminal Law – Topic 4379

Procedure – Jury charge – Directions re credibility of accused – [See
Criminal Law – Topic 4351

Criminal Law – Topic 4391

Procedure – Jury charge – Redirection or further direction – [See second
Criminal Law – Topic 4391.2

Criminal Law – Topic 4391.2

Procedure – Jury charge – Directions following questions by jury – [See
Crimi­nal Law – Topic 4351

Criminal Law – Topic 4391.2

Procedure – Jury charge – Directions following questions by jury – The Supreme Court of Canada set out the following manner of handling questions from a jury: “(1) All questions received from the jury must be considered to be of significance and important. (2) Counsel must be advised of the question and their submissions heard as to the nature and content of the response. (3) The answer to the question must be correct and compre­hensive. Even if the issue was covered in the original charge it must, in its essence, be repeated even if this seems repetitious. (4) No precise formula need be used but the response to the question must always be accurate and complete. (5) The longer the delay the more important it will be that the recharge be correct and comprehensive. As a general rule an error in the recharge on the question presented will not be saved by a correct charge which was given earlier. The question indicates the concern or confusion of the jury. It is that concern or confusion which must be correctly addressed on the recharge.” – See para­graph 34.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 14].

R. v. Waite (1986), 15 O.A.C. 215; 28 C.C.C.(3d) 326 (C.A.), affd. [1989] 1 S.C.R. 1436; 98 N.R. 69; 35 O.A.C. 51, refd to. [paras. 15, 51].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [para. 16].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81, refd to. [para. 16].

R. v. Linney, [1978] 1 S.C.R. 646; 13 N.R. 217, refd to. [para. 23].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 47].

R. v. Desveaux (1986), 13 O.A.C. 1; 26 C.C.C.(3d) 88 (C.A.), refd to. [para. 51].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 54].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(i) [para. 46].

Authors and Works Noticed:

Gibson, J., The Liars’ Defence (1993), 20 C.R.(4th) 96, generally [para. 53].

Gibson, J.L., Misquote Changes Meaning (1994), 24 C.R.(4th) 395, generally [para. 53].

Gold, A.D., The “Average, Nervous, Inadequate, Inarticulate, in Short, Typi­cal” Accused’s Defence (1993), 22 C.R.(4th) 253, generally [para. 53].

Gold, A.D., Typo Does Not Change Any­thing (1994), 24 C.R.(4th) 397, generally [para. 53].


Brian A. Beresh, for the appellant;

Bart Rosborough, for the respondent.

Solicitors of Record:

Beresh, Depoe, Cunningham, Edmonton, Alberta, for the appellant;

Bart Rosborough, Edmonton, Alberta, for the respondent.

This appeal was heard on May 5, 1994, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Cory, McLachlin and Major, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official lan­guages on October 20, 1994, when the fol­lowing opinions were filed:

Cory, J. (Lamer, C.J.C., La Forest, So­pinka and Major, JJ., concurring) – see paragraphs 1 to 35;

McLachlin, J., dissenting (L’Heureux-Dubé, J., concurring) – see paragraphs 36 to 60.


R. v. W.D.S.

(1994), 157 A.R. 321 (SCC)

Supreme Court of Canada
Reading Time:
27 minutes
Cory, Dubé, Major, McLachlin, Sopinka 

Cory, J.
: The principal questions raised on this appeal are these: Did the trial judge err in responding to a question from the jury pertaining to reasonable doubt? If so, can it constitute the grounds for a retrial if the main charge was free from error on this issue?

Factual Background

More Insights