



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bacci, 2018 ONCA 928

DATE: 20181121

DOCKET: C62022

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

BETWEEN

Her Majesty the Queen

Respondent

and

Megan Bacci

Appellant

Gregory Lafontaine and Ricardo Golec, for the appellant

Dena Bonnet, for the respondent

Heard: September 14, 2018

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

Then J. (
ad hoc
):

[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 appellants 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 appellants
    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 dont 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 appellants 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 appellants eyes were
    glassy and slightly bloodshot, although no issues were observed with the
    appellants motor abilities. Officer Laurin also noticed the odour of alcohol
    on the appellants 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 appellants 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 appellants vehicle several weeks after the
    accident and after it had been removed from the scene. He testified that the
    appellants 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 its 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 Crowns position as follows:

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

Megan Baccis 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 appellants 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 19
th
, 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 counsels interpretation of the
    appellants 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 dont 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 1eave 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.

(Emphasis added.)

[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 appellants 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 appellants statement to a higher degree of
    scrutiny than was appropriate.

[24]

The Crown argues
    that the appellants 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 appellants
    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 appellants 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 accuseds 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 judges
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 judges
W.(D.)
instruction.

[33]

I agree with the Crown that the second and third branch of the trial
    judges 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. Thats 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 Baccis 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 judges instruction on
W.(D.)
with respect
    to the appellants 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.

(Emphasis added.)

[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 appellants 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 appellants 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 appellants 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 thats alluded
    to, thats 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 Crowns 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: AH Nov 21 2018

Edward Then J. (ad
    hoc)
I agree. Alexandra Hoy A.C.J.O.
I agree. David Watt J.A.


