R v Ibrahim, 2019 ONCA 631

The Issue:

Is a W.(D.) instruction required (or can it be modified) where the mens rea test is objective (rather than subjective).

The Answer:

“The classic W.(D.) formulation will not always be appropriate; it depends on the context” [para 37] - indeed, it may be that it is not required at all [para 37]. In the case of an offence with an objective mens rea, such as dangerous driving, “[f]actual assertions in an accused person’s evidencde - about things observed, actions performed, the sequence of events, etc. - may be helpful to a jury in determining whether the Crown has proved the fault requirements” [para 32]. In the present case, the trial judge erred in the W.(D.) instruction. The Court of Appeal noted:

In these circumstances, the first prong of the classic W.(D.) formulation is inapplicable. However, whether accepted as true or not, evidence of an accused person’s state of mind may be capable of raising a reasonable doubt on whether any of the elements of dangerous driving have been established by the Crown. This is precisely the point that a W.(D.) instruction is meant to bring home to the jury – that the verdict must be based on the whole of the evidence, and the jury must consider whether the evidence as a whole raises a reasonable doubt: Watt’s Manual of Criminal Jury Instructions, at pp. 272-273; Dinardo, at para. 23. [Para 49]

The Fine Print:

In coming to this conclusion, the court discussed the mens rea for dangerous driving (the unlawful act supporting a manslaughter conviction). As part of this review of the law the court noted that issue of the difference between careless driving (under the Highway Traffic Act) and dangerous driving (under the Criminal Code). Rejecting the notion of bright lines to define momentary inattention the court held:

Consequently, the fact of the conduct having occurred in a three to five second interval is not determinative of guilt. What matters is what occurred within that interval, framed by the overall nature of the accused person’s driving and the standard expected of a reasonable driver in the circumstances. [Para 26].