EH was convicted of sexual offences perpetrated against a 4yr old. Her video and audio recorded statement to police was tendered at trial pursuant to section 715.1 of the Code. She also testified via closed circuit television in accordance with section 486.2 of the Code.

The evidence revealed that on several occasions while sitting on a couch watching television EH took the child’s hand and placed it on his penis. EH would then remove her hand and tell the child that he loved her.

At trial, EH testified that on a single occasion, out of the blue, the child put her hand down his shorts and touched his penis; at the time he was not wearing underwear. EH said this caused him to panic- he ran upstairs put on pants, a belt and a shirt.

The jury convicted EH and he appealed: 2014 ONCA 622. One of the grounds of appeal EH argued was that although the trial judge had clearly stated in the pre-charge conference that a WD instruction would be given to the jury, the final charge did not include such an instruction or the functional equivalent thereof.

The Court of Appeal held that in these circumstances their task was “to determine whether the final instructions, viewed as a whole, would have left the jury under any misapprehension about the applicable burden and standard of proof” @para 6. The Court dismissed the appeal for four compelling reasons.

First, the Court noted “that the W.D. formula is not some magic incantation, omission of which is fatal” @para 9. What matters is whether the jury understood that that at the end of the day they had to simply chose between two competition versions of events. The Court found that instructions in substance did not leave the jury with an erroneous view.

Second, the Court held that the instructions on the core criminal law concepts of the presumption of innocence, the burden of proof and the standard of proof were all entirely complete and correct.

Third, the Court importantly noted that the charge does not take place in isolation. It is preceded by the closing addresses of counsel. Those addresses are not substitutes for a deficient charge but they “may fill some gaps left in the charge” @para 11. In this case the Court noted that “the closing addresses of both counsel tracked the W.D. framework. Nothing in the charge contradicted or qualified what counsel said” @para 11.

Lastly and perhaps not surprisingly the Court relied on the fact that EH made no objection to the charge at trial.

Although WD has been the subject of much judicial scrutiny, the decision in EH is not at all surprising when one considers the circumstances of the seminal decision itself. In WD the trial judge in fact erroneously instructed the jury that they were engaged in a credibility contest, yet the conviction was upheld. In EH the Court of Appeal clearly found the functional equivalent of a proper WD instruction even in the absence of the magic credibility incantation.