



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. M.R.H.,









2019 BCCA 39




Date: 20190205

Docket: CA44346

Between:

Regina

Respondent

And

M.R.H.

Appellant

Restriction on Publication:
A publication ban has been
mandatorily imposed under
s. 486.4 of the
Criminal Code
restricting the publication,
broadcasting or
transmission in any way of evidence that could identify a complainant or
witness,
referred to in this judgment by the initials J.S.
This publication ban applies
indefinitely unless otherwise ordered.




Before:



The
  Honourable Madam Justice Garson

The
  Honourable Mr. Justice Harris

The
  Honourable Mr. Justice Savage




On appeal from:  An order of the Supreme Court of British
Columbia, dated
April 12, 2016 (
R. v. M.R.H.
, New Westminster Registry
X078504).




Counsel for
  the Appellant:



B.V. Bagnall





Counsel for
  the Respondent:



M.G. Scott





Place and
  Date of Hearing:



Vancouver, British Columbia

October 25, 2018





Place and
  Date of Judgment:



Vancouver, British Columbia

February 5, 2019





Dissenting
  Reasons by:





The
  Honourable Mr. Justice Savage





Written
  Reasons by:





The
  Honourable Madam Justice Garson (
page 19, para. 54
)





Concurred
  in by:





The
  Honourable Mr. Justice Harris








Summary:

The appellant was charged with two counts: (1) sexual
interference with the complainant between 2006 and 2011 at Surrey and Harrison
Hot Springs, and (2) sexual assault of the complainant during the same
time frame and at the same places. The sole issue at trial was credibility.
During its deliberations, the jury asked whether it could convict on the basis
of the first incident alone. The judge sought submissions from counsel before
answering the question, but when the jury returned it became clear that the
judge and counsel had misunderstood the question. The judge answered without
seeking further submissions and engaged in a colloquy with the foreperson and
the appellants counsel. The next day, the jury convicted the appellant on both
counts. On appeal, the appellant says the judge erred by not providing
sufficient instructions on credibility in his main charge or his response and
not clarifying the question or seeking further submissions from counsel before
answering. Held: appeal allowed per Garson J.A., concurred in by Harris J.A.
(Savage J.A. dissenting). Per Garson J.A.: The judge erred in (1) not
explaining to the jury that the Crown needed to prove only one of the incidents
for the jury to convict on both counts; (2) answering the question in a
confusing manner, without first clarifying it or seeking further submissions
from counsel; and (3) failing to re‑instruct on credibility, when
that was the sole issue and the jury question suggested it may have believed
the complainant regarding one incident and not the other when there was no
obvious rational basis for making differential credibility findings. The remedy
is a new trial.

Per Savage J.A. dissenting: the judge did not err in
his initial charge on credibility or in his answer to the jurys question. A
C.W.H. instruction was not necessary in the circumstances as there was no
realistic risk that the jury would have understood its task as choosing between
two contradictory versions of events. A recharge on credibility was not
required in response to the jurys question, as the question did not raise an
issue concerning assessment of credibility. The judge gave the legally correct
answer to the jurys question and thus there was no risk that the jury was left
with an erroneous view of the law. The judge heard submissions from counsel
after the question was asked and did not err in failing to seek further
submissions after the question was clarified.

Dissenting Reasons for
Judgment of the Honourable Mr. Justice Savage:

I.
Introduction

[1]

M.R.H. was charged
with one count of sexual assault and one count of sexual interference in
relation to two discrete incidents involving his niece J.S. Following a six‑day
trial before a judge and jury, he was convicted of both charges. He was
sentenced to 30 months in prison.

[2]

M.R.H. alleges the
trial judge erred in his instruction to the jury. He submits the trial judge
erred in providing insufficient instructions on the issue of credibility and in
failing to adequately answer the jurys question.

[3]

For the reasons that
follow I would dismiss the appeal.

II.
Background

[4]

J.S. alleged that M.R.H.
touched her sexually on two occasions, once at her grandmothers apartment when
she was in grade five, and once on a family camping trip when she was in grade
six. She told her mother about the incidents when she was in grade nine.

[5]

On March 31,
2016, M.R.H. was charged with one count of sexual assault contrary to s. 272
of the
Criminal Code
, R.S.C. 1985, c. C‑46, and one count of
sexual interference contrary to s. 151 of the
Criminal Code
, in
relation to the two incidents. Each count encompassed the entire time period in
which the two discrete events were alleged to have occurred. The charges read
as follows:

Count 1

[M.R.H.], from
the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at
or near Surrey and Harrison Hot Springs, in the Province of British Columbia,
did,
for a sexual purpose, touch, directly or indirectly, with a part of his body or
with an object, the body of J.S.
, a person under the age of fourteen years,
contrary to Section 151 of the Criminal Code.

Count 2

[M.R.H.],
from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive,
at or near Surrey and Harrison Hot Springs, in the Province of British
Columbia,
did sexually assault J.S.
, contrary to Section 271 of the
Criminal Code.

[Emphasis
added.]

[6]

Three witnesses
testified at trial: the complainant J.S., the complainants mother and M.R.H.

[7]

The complainant gave
evidence about the two incidents underlying the charges. She testified that the
first incident occurred at her grandmothers apartment when she was in grade
five. She said M.R.H. came into her room while she was sleeping and rubbed her
arms, touched her vagina, digitally penetrated her and attempted sexual
intercourse. She said the second incident occurred on a family camping trip at
the end of her grade six year. She testified that M.R.H. attempted to force her
to perform oral sex on him while they were sharing a tent.

[8]

The complainants
mother testified generally as to the relationship between the complainant and M.R.H.,
and about the complainants visits to her grandmothers apartment and the
camping trip. She had no direct knowledge of the alleged incidents.

[9]

M.R.H. denied that
either of the incidents had occurred.

[10]

Given the
complainant and M.R.H.s conflicting version of events, credibility was the
main issue at trial. In his charge to the jury, the trial judge gave
instructions on the presumption of innocence, reasonable doubt, and
credibility. With respect to credibility, he gave the jury the following instruction
pursuant to
R. v. W.(D.)
, [1991] 1 S.C.R. 742:

If you believe
the evidence of [M.R.H.] that he did not touch the complainant in a sexual
manner at all, let alone as described by J.S., you must acquit him.

Even if you do
not believe his evidence, if it raises a reasonable doubt in your mind as to
whether he did what J.S. says at the condo owned by her grandmother and at
Harrison -- sorry, and at the Harrison camping trip, you must acquit him.

Finally,
even if you disbelieve him and find his testimony raises no reasonable doubt,
you must still acquit him if you find that the evidence tendered by the Crown
does not meet its burden of proving the elements of each offence on each
occasion set out in the indictment beyond a reasonable doubt.

[11]

The jury charge was
a consensus charge reached by a collaborative effort. The judge provided a copy
of his proposed charge to counsel, additions and changes sought by counsel were
incorporated into the charge, and all parties were content with the final
charge as drafted. Neither party objected to or raised any issue with the
charge as delivered.

[12]

After approximately
three hours of deliberation, the jury returned with a question. The question,
which was written,
appeared to be
as follows:

If
we believe the 1st incident, can we convict on this alone? Find him not guilty
on the 2nd [incident].

[13]

The judge recognized
that, as a matter of law, the answer to the question was yes. Counsel for M.R.H.
agreed. However, the judge thought the way the question was phrased suggested
the jury may need to be reminded of the principles of assessing credibility.
The judge invited submissions from counsel with respect to the answer.

[14]

Counsel for M.R.H.
expressed concern that if the jury rejected the complainants evidence on the
second incident, it would be problematic for the jury to accept her evidence on
the first incident since that meant she would have lied under oath. Counsel for
the Crown suggested the jury should be reinstructed on how to assess the
complainants credibility, but submitted as long as the jury understood the
law, it could assess credibility as it saw fit, including believing the
complainant on one incident but not the other.

[15]

The judge agreed it
was of some concern to him that the jury could reject the evidence of the
complainant with respect to the second incident, while at the same time fully
accepting her evidence on the first. He concluded he should reinstruct the jury
on credibility, but made clear that it was the jurys purview to accept or
reject the evidence. The judge remarked that he needed to be as balanced as I
can be and not reargue the defence case. Neither defence nor Crown counsel
objected to the answer proposed by the judge.

[16]

When the jury was
brought in to hear the answer to its question, the jury foreperson informed the
judge that the question the jury had actually asked was only:

If
we believe the 1st incident, can we convict on this alone?

The second part
of the question was written in faint pencil and the judge had assumed it was
part of the question, rather than a deliberate erasure. The jury foreperson
informed the judge otherwise.

[17]

The exchange between
the judge and jury went as follows:

THE COURT:
Members of the jury, I apologize for the delay in responding to the question
you posed, but it raised an issue I wanted to discuss with counsel and reflect
on the proper instruction to give. I did not want to do that in either haste or
without the benefit of counsels assistance. We have been able to speak about
that in your absence.

And
first of all, because the question, it appears somebodys pencil broke when the
question was written, I want to make sure I have it correctly. I am reading
from what you passed to me [as read in]:

If we believe the 1st incident, can we
convict on this alone? Find him not guilty on the 2nd . . .

--
and then it goes i-n-c-i, and I am assuming that should say incident.

JURY FOREPERSON: Your Honour, we withdrew the second part,
we
would just like to know if we are  can convict on the first incident alone for
both counts
.

[Emphasis
added.]

[18]

Without inviting
further submissions from counsel, the judge gave the following answer to the
jurys question:

THE COURT:
Well, the answer to that is a little bit different then. Yes, you may, but your
 your question has posed a little bit of a difficulty in terms of you may
convict on the evidence, if you find the constituent elements have all been
proven, but as I say, I may have misinterpreted, because now I see it is an
erasure. I just gathered that the pencil had run out of steam.

So
as a matter of law, if the Crown has proven beyond a reasonable doubt the
constituent elements of each of the offences, they need not prove both
incidents, one is sufficient. But I should carry on to say that if you are
having difficulty or rejecting the evidence of the complainant on the second
offence, that raises a bit of a problem in terms of reconciling the acceptance
of her evidence on one if you have rejected or raise a reasonable doubt -- or
there is a reasonable doubt raised in your mind on the second.

So I took your question to be that you
had reached different conclusions. If that is not the case, and I do not want
to go into the discussions you are having in the jury room, but I need to tell
you, I think, counsel, this is -- I am taken a bit by surprise by the
retraction of the second question.
But as a matter of law, the Crown needs
prove only one of the incidents, not both, for you to convict, and the two
separate charges relate to separate offences. One is of sexual interference,
the other is of sexual assault, and it is not incumbent upon the Crown, and I
had hoped my charge had made clear earlier, to demonstrate beyond a reasonable
doubt or prove beyond a reasonable doubt that each happened. One of them is
sufficient
.

[Emphasis
added.]

[19]

Neither counsel
raised any issue with the judges answer. The following day, the jury convicted
M.R.H. of both counts.

III.
On Appeal

[20]

The issues on appeal
are:

(1)    Did the trial judge provide
sufficient instructions to the jury on the issue of credibility?

(2)    Did the trial judge adequately
answer the jurys question?

IV.
Discussion
and Analysis

[21]

Appellate review of
jury instructions is governed by a functional and contextual approach. In
R. v. Alexander
,
2015 BCCA 484, Madam Justice Stromberg‑Stein succinctly set out the
approach to be taken in reviewing a jury charge. She said:

[110]    An
appellate court, when reviewing a jury charge, must consider the alleged error
in the context of the charge and the trial as a whole. A trial judge is allowed
flexibility in instructing the jury. The precise words used in the jury charge
are a matter of discretion for the trial judge and will depend on the
circumstances of the case. It is the overall effect of the instructions that
matters:
R. v. Araya
, 2015 SCC 11 at para. 39.

[111]    An
accused is entitled to a properly instructed jury, not a perfectly instructed
one. If perfection were the standard, no jury charge would pass appellate
review:
R. v. Jacquard
, [1997] 1 S.C.R. 314 at paras. 1‑2.

[112]    It
is the trial judges obligation to properly instruct the jury; however, it is
expected that counsel will assist the trial judge and identify aspects that may
be problematic in the charge. A failure to object to a jury charge is not
determinative; however, trial counsels position at trial is an important
factor to consider when evaluating complaints raised on appeal:
Jacquard
at paras. 35‑38;
R. v. Purchase
, 2015 BCCA 211 at paras. 3‑4.

[22]

Mr. Justice
Frankel, for the Court, endorsed this approach in
R. v. Hume
,
2016 BCCA 105 at para. 20. He emphasized that an appellate court must take
a functional approach and found assistance in the words of Mr. Justice
Doherty in
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545 (Ont. C.A.):

[27]      In
Jacquard
,
Lamer C.J.C. stressed that a functional approach must be taken when
assessing the adequacy of jury instructions. I take this to mean that
instructions must be tested against their ability to fulfil the purposes for
which they are given and not by reference to whether any particular approach or
formula has been used. By the end of the instructions, whatever approach is
used, the jury must understand:

     the factual issues
which had to be resolved;



the law to be applied to
those issues and the evidence;



the positions of the
parties; and

     the
evidence relevant to the positions taken by the parties on the various issues.

A.       Instruction on Credibility

[23]

M.R.H. submits that
the judge provided insufficient instruction on credibility. He does not argue
that anything anyone said to the jury at any point was wrong. He only says that
it was necessary for the judge to give an additional instruction to highlight
the importance of the concept of reasonable doubt as to credibility. Specifically,
he says that because the jury had to acquit if it did not believe the
complainant, the judge should have added to his
W.(D.)
instruction the
supplementary instruction suggested by Mr. Justice Wood in
R. v. C.W.H.
(1991), 68 C.C.C. (3d) 146 (B.C.C.A.), that [i]f, after a careful
consideration of all of the evidence, you are unable to decide whom to believe,
you must acquit (at 155). He says the judge erred in not providing a 
C.W.H.

instruction in his jury charge.

[24]

The Crown submits
that the judges charge clearly explained the applicable principles regarding
assessing credibility and the burden of proof. It says there was nothing to
suggest the jury would have lost sight of the burden or standard of proof or
misunderstood its task as choosing between two contradictory versions of
events. It takes the position that a
C.W.H.
instruction was not
necessary in the circumstances.

[25]

This case parallels
W.(D.)
in that the jury received two contradictory versions of events. When reviewing
the adequacy of jury instructions in such cases, the question for this Court to
consider is whether, in substance, the trial judges instructions left the
jury with the impression that it had to choose between the two versions of
events:
R. v. Avetysan
, 2000 SCC 56 at para. 19. No
particular formulation of this principle is required so long as 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:
W.(D.)
at 758. The jurys instruction must not be framed as an either/or choice
between the evidence of the Crown or the evidence of the defence.

[26]

I note that in
C.W.H
.
the trial judge did not instruct the jury either that the rule with respect to
reasonable doubt applied to the issue of credibility or that even if they
rejected the evidence of the appellant in its entirety, they must still be
satisfied beyond a reasonable doubt of the guilt of the appellant, on the basis
of the evidence which they did accept, before they could convict (at 154).
In this case, the trial judge did instruct the jury that the rule of reasonable
doubt applied to the issue of credibility and that they could acquit even if
they rejected the evidence of M.R.H. in its entirety.

[27]

M.R.H. also referred
us to the decision of this Court in
R. v. Thiara
, 2010 BCCA
415. In that case, the trial judge did not give the
C.W.H.
instruction
and was not faulted. The Court concluded that a
C.W.H.
instruction would
have been inappropriate in the circumstances of the case because even if the
jury had been unable to decide whom to believe, it still could have convicted
on some of the counts (at para. 26). Considered as a whole, the
instruction in
Thiara
was sufficient to impress upon the jurors that
they were not simply to choose a version of events, and that the onus and
burden of proof always remains with the Crown (at para. 29).

[28]

I agree with the
Crown that nothing in
Thiara
suggests that the
C.W.H.
instruction
should be given in any and every case in which credibility is decisive. This
Courts decision in
R. v. Howard
, 2017 BCCA 263, provides a
recent example where this Court held that the supplementary
C.W.H.
instruction was unnecessary because there was no realistic risk in the
circumstances that the jury would have been led to believe it had to make an
either/or decision between the evidence of the complainant and the accused
(at paras. 13‑15).

[29]

In this case, the
jury was not called upon simply to decide between the evidence of the
complainant and M.R.H. In my view, there is nothing to suggest that the jury
would have lost sight of the burden or standard of proof or would have understood
its task as choosing between two contradictory versions of events.

[30]

The jury was given
ample instruction on assessing credibility and the burden and standard of
proof. It was instructed that:

·

[M.R.H.]
does not have to prove anything. It is up to the Crown to prove its case on
each element of the offence beyond a reasonable doubt;

·

the
burden or onus o[f] proving the guilt of [M.R.H.] beyond a reasonable doubt
rests upon the Crown and never shifts. You must not find him guilty if you have
a reasonable doubt about his guilt after you consider all of the evidence as it
relates to the charge against him;

·

the
rule of reasonable doubt also applies to the issue of credibility or
reliability. You need not definitely decide on the reliability or credibility
of a witness or a group of witnesses. You need not fully believe or disbelieve
one witness or a group of witnesses. If you have a reasonable doubt as to the
guilt of [M.R.H.] arising from the reliability or credibility of the witnesses,
then you must find him not guilty;

·

they
could accept all, part, or none of a witnesss evidence;

·

the
case against [M.R.H.] rests entirely on the evidence of the complainant;

·

If
you believe the evidence of [M.R.H.]  you must acquit him. Even if you dont
believe his evidence, if it raises a reasonable doubt in your mind as to
whether he did what [the complainant] says  you must acquit him. Finally, even
if you disbelieve him and find his testimony raises no reasonable doubt, you
must still acquit if you find that the evidence tendered by the Crown does not
meet its burden of proving the elements of each offence  beyond reasonable
doubt;

·

I
remind you that the Crown must prove each of these ingredients beyond a
reasonable doubt. You must return a verdict of not guilty on the offence of
sexual assault if the Crown has not proven each of these ingredients beyond a
reasonable doubt. The same applies to count 1; and

·

[w]hen
deciding whether the accused is guilty or not guilty, you should not weigh the
theory or position of the Crown against the theory or position of the accused,
since it is always the duty of the Crown to prove the guilt of the accused beyond
a reasonable doubt before he can be convicted.

[31]

In this case, there
was no realistic risk that the jurors would think they had to choose between
two contradictory versions of events. The charge made clear that the burden of
proof was always on the Crown and that any reasonable doubt had to be resolved
in favour of the appellant, including a reasonable doubt based on credibility.
A
C.W.H.
instruction was not required in the circumstances.

[32]

I would not accede
to this ground of appeal.

B.       Answer to Jurys
Question

[33]

M.R.H. submits that the
trial judges answer to the jurys question was inadequate. He argues the judge
erred by failing to seek submissions from counsel after the clarification of
the question, and by not recharging the jury on credibility in response to the
question.

[34]

In response, the
Crown argues that the judges answer was clear, correct and comprehensive, and
did not leave the jury with an erroneous view of the law. The Crown says the
judge did not err in answering the question.

[35]

In
W.(D.)
, the
Supreme Court of Canada discussed the importance of clearly answering a jurys
question. It held that a jury question required a full, careful and correct
response, and that the answer should remind the jury of the instructions given
in the course of the main charge. The Court stated (at 759‑760):

When
a jury submits a question, it gives a clear indication of the problem the jury
is having with a case. Those questions merit a full, careful and correct
response. As well, the answer should remind the jury of its instructions given
in the course of the main charge. See
R. v. Desveaux
(1986),
26 C.C.C. (3d) 88 (Ont. C.A.), at p. 93, where it was said:

Questions
from a jury manifest their concern and indicate their desire for direction on a
particular issue. The trial judge should read the question to counsel and
obtain their submissions as to the response that should be made. It is then
incumbent on the trial judge to answer the question in a complete and
reasonably detailed manner. It is unfair to the parties and the jury to attempt
a short form answer to a problem that is obviously presenting difficulties. The
definitions requested had been adequately set out early in the charge. However,
memories are short and much had intervened in the way of directions and
recharges before the question was submitted. The original instructions should
have been repeated in the response.

[36]

The Supreme Court of
Canada also discussed the importance of responses to jury questions in
R. v. Naglik
,
[1993] 3 S.C.R. 122, and
R. v. S.(W.D.)
, [1994] 3
S.C.R. 521. In
Naglik
, the Court noted that when a jury asks a question
about an issue addressed in the main charge, it shows the jury did not
understand or remember part of the main charge. Therefore, answers to jury
questions are extremely important and carry greater influence than instructions
in the main charge. Chief Justice Lamer explained (at 139):

Answers to questions from the jury are
extremely important, and carry influence far exceeding instructions given in
the main charge. If the jury asks a question about an issue addressed in the
main charge, it is clear that they did not understand or remember that part of
the main charge, and it is also clear that they must exclusively rely on the
answer given by the trial judge to resolve any confusion or debate on the point
which may have taken place in the jury room during their deliberations up to
that point.

[37]

In
S.(W.D.)
,
the Court again emphasized the importance of giving correct and comprehensive
responses to jury questions. It held that since a jury question identifies the
issue upon which the jury needs direction, the recharge must be correct and
comprehensive. It said (at 530):

There can be no doubt about the
significance which must be attached to questions from the jury and the fundamental
importance of giving correct and comprehensive responses to those questions. With
the question the jury has identified the issues upon which it requires
direction. It is this issue upon which the jury has focused. No matter how
exemplary the original charge may have been, it is essential that the recharge
on the issue presented by the question be correct and comprehensive. No less
will suffice. The jury has said in effect, on this issue there is confusion,
please help us. That help must be provided.

[38]

In
R. v. Daley
,
2007 SCC 53, the Supreme Court of Canada explained the role of an appellate
court in reviewing a jury charge. It held that a reviewing court should
consider the general sense which the words used have likely conveyed to the
jury and affirmed the proposition from
R. v. Jacquard
, [1997]
1 S.C.R. 314 at para. 2, that a trial judges jury charge will not be held
to a standard of perfection (at para. 31). It held:

[31]      In
determining the general sense which the words used have likely conveyed to the
jury, the appellate tribunal will consider the charge as a whole. The standard
that a trial judges instructions are to be held to is not perfection. The
accused is entitled to a properly instructed jury, not a perfectly instructed
jury: see
Jacquard
, at para. 2. It is the overall effect of the
charge that matters.

[39]

In
R. v. Brydon
,
[1995] 4 S.C.R. 253, Chief Justice Lamer, writing for the Court, provided two
questions for an appellate court to consider in assessing whether a trial judges
charge or recharge on burden of proof amounted to reversible error. First, the
court must consider whether the impugned instruction is inconsistent with what
was said in the initial charge or is simply erroneous standing by itself (at para. 19).
Second, the court should ask whether, after placing the inconsistency or error
in the context of the charge as a whole, there is a reasonable possibility that
the jury might have been misled by those instructions (at para. 19). In
that case, the Court concluded that there was a reasonable possibility that
the trial judges erroneous instruction may have misled the jury (at para. 25).

[40]

The Courts holding
in
Brydon
makes clear that for a judges answer to a jury question to be
a reversible error, it must be erroneous and capable of misleading the jury. As
explained by Justice Cromwell in
R. v. Layton
, 2009 SCC 36,
albeit in dissent, the focus on an appeal concerning the answer to questions
from the jury is whether the jury was left with an erroneous view of the law. Justice
Cromwell noted that even in
S.(W.D.)
, where the Court emphasized the
importance of a comprehensive response to jury questions, the conviction was
overturned due to the judges legally erroneous instructions, not the failure
to be as helpful as possible. Justice Cromwell explained:

[41]
Of course, questions from
the jury must be answered fully and properly to the extent possible: see, for
example,
R. v. S. (W.D.)
, [1994] 3 S.C.R. 521, at
pp. 528‑31. But the focus on appeal remains on whether the jury was
left with an erroneous view of the law
. In
S. (W.D.)
, the
majority of this Court found that the recharge in that case contained a legal
error and that its effects were not cured by the correct instructions
previously given during the main charge.
It is important to remember,
however, that the case turned on legally erroneous instructions, not on the
trial judges failure to be as helpful as possible
.

[Emphasis added.]

[41]

In
R. v. Kahnapace
,
2010 BCCA 227 at para. 50, this Court discussed the importance of
clarifying unclear or ambiguous questions from the jury. It held that failure
to clarify such questions may amount to reversible error. This Court also
considered the effect of ambiguous or uncertain jury questions in
R. v. Shannon
,
2011 BCCA 270, where it held that it is obvious that if an ambiguous or
uncertain question is asked, a clear and correct answer cannot be given (at para. 53).

[42]

Based on the
foregoing authorities, the following legal principles apply to an appellate review
of a jury charge and response to a jury question: (1) if a question
indicates the jury did not understand part of the main charge, the response to the
question should be clear, careful and correct; (2) unclear or ambiguous
questions should be clarified by the judge, as such questions cannot be given
clear and correct answers; and (3) while jury questions should be answered
fully and carefully, on appeal the reviewing court should focus on whether the
jury was left with an erroneous view of the law. The reviewing court should
intervene if there is a reasonable possibility that the trial judges erroneous
instruction may have misled the jury.

[43]

This is not a case
where the jurys actual question was unclear or ambiguous and was insufficiently
clarified by the trial judge. The jury foreperson clearly told the trial judge
that the jury had meant to ask only whether [i]f we believe the 1st incident,
can we convict on this alone? This is illustrated by the following statement
by the jury foreperson to the judge:

JURY FOREPERSON: Your Honour, we withdrew the second part,
we would just like to know if we are  can convict on the first incident alone
for both counts.

The
question was sufficiently clarified to enable the judge to provide a clear and
correct answer. Further inquiry into the jurys question would risk becoming an
impermissible inquiry into the jurys deliberations. The judge made clear he
did not want to go into the discussions you are having in the jury room.

[44]

The question, as
clarified, was whether the jury could convict on one incident alone for both
counts. The judges response to the question was legally correct. The judge
answered in the affirmative, which counsel for M.R.H. agreed was the legally
correct answer. In light of the judges correct answer, I do not think there
was a reasonable possibility the jury was left with an erroneous view of the
law.

[45]

In addition to being
correct, responses to jury questions should be complete. In this case, in my
view, the judges failure to reinstruct on credibility was not, as argued, a
reversible error. Given his initial interpretation of the question, the judge
invited submissions from counsel regarding the answer.

[46]

The judge opined
that the jury may need to be reinstructed on credibility, since the question
suggested that some jurors may have believed the complainant on the first
incident but not on the second. However, once the judge realized what the
actual question was, the same issues with respect to credibility did not arise.
He told the jury the following:

So I took your question to be that you had reached different conclusions. If
that is not the case, and I do not want to go into the discussions you are
having in the jury room, but I need to tell you, I think, counsel, this is -- I
am taken a bit by surprise by the retraction of the second question. But as a
matter of law, the Crown needs prove only one of the incidents, not both, for
you to convict, and the two separate charges relate to separate offences.

[47]

The jurys question
did not suggest it may have misunderstood how to assess credibility. Instead,
the jurys question likely arose from the way the charges were laid, with each
count encompassing two discrete incidents. This became evident from the jurys
follow‑up question:

JURY
FOREPERSON: May I ask another question?

THE COURT:
Well, as long as it is a question on behalf of the jury, yes.

JURY
FOREPERSON: Yes, it pertains to the same. So we would like to know if both --
so theyre  theyre separate charges for each incident?

THE COURT:
No.

JURY
FOREPERSON: Are both charges relevant to each -- or for both incidents.

THE COURT:
The charges, and again if you look at the indictment, it will become clear to
you, the indictment embraces a period of a number of years, and I do not -- I
do have it in front of me, it embraces the years between 2006 to 2011. The
evidence would tend to demonstrate, at least the allegations arise from 2007 or 8
and 2009, and they are separate offences. But each is evidence -- sorry, each
--

JURY FOREPERSON: We did suspect this, Your Honour, but we
just needed clarification. Some of our jurors were not clear on this and we
wanted clarification.

[48]

The jurys question
also could have arisen due to the wording of the judges initial
W.(D.)
charge. The judge said the following with respect to the third branch of
W.(D.)
:

Finally,
even if you disbelieve him and find his testimony raises no reasonable doubt,
you must still acquit him if you find that the evidence tendered by the Crown
does not meet its burden of proving the elements of
each offence on each
occasion
set out in the indictment beyond a reasonable doubt.

[Emphasis added.]

The jurys
question could have been directed at clarifying what the judge meant by proving
each offence on each occasion.

[49]

Although the precise
reason for the jurys question cannot be determined, this is not a case where
the jurys question suggested it had a misunderstanding of the law that needed
to be rectified, or that would have been assisted by recharging on credibility.
The judge gave clear, complete instructions on credibility in his initial
charge, and given this initial charge, I do not think the jury could have been
left with an erroneous view of the law. The judge did not err in failing to
reinstruct on credibility after the jury asked its question.

[50]

In any event, if the
jurys question stemmed from something else, say, from a concern that the two
incidents giving rise to the charges might be considered differently, how would
recharging the jury on credibility have helped? The jury would have been
instructed that it could accept some, all or none of a witnesss testimony and
that the burden always remained with the Crown. The jury had already received those
instructions, and on appeal, M.R.H. took no issue with the judges main charge,
other than to say it needed a
C.W.H.
instruction, which, as I have
explained, was not required.

[51]

Lastly, the judge did
not err in failing to seek submissions from counsel after the question was
clarified. The judge sought submissions from counsel after the question was
first posed by the jury, including giving counsel a dinner break to consider
their positions. The judge had already heard each counsels submissions
regarding recharging on credibility when he decided that he did not need to reinstruct
on credibility in answering the actual question posed by the jury. In addition,
neither counsel objected to the judges answer or requested the opportunity to
make further submissions following the judges response to the question.

[52]

I do not think the
jury was left with an erroneous view of the law: one incident was sufficient to
convict on both counts. As stated in
Jacquard
,

an
accused is entitled to a properly
instructed jury, not a perfectly instructed jury. In my view, the question
actually asked by the jury was correctly answered. It did not require a
recharge on what the jury had already been correctly charged upon: credibility
and the proposition that determining guilt or innocence was not based simply on
who was believed, or that the jury was entitled to accept some, none or all of
a witnesss testimony.

V.
Conclusion

[53]

I would dismiss the
appeal.

The
Honourable Mr. Justice Savage

Reasons for Judgment of the Honourable Madam Justice
Garson:

[54]

I have had the
privilege of reading in draft the reasons for judgment of Mr. Justice
Savage. With respect, I do not agree with his conclusion for three main
reasons. First, the judges charge to the jury was confusing in the context of
the manner in which the indictment was drawn. The judge failed to adequately
explain to the jury that the indictment charged two offences which covered a
period of time during which two separate incidents were alleged to have
occurred.

[55]

Second, when the
jury returned with a question that appears to have arisen from confusion about
the two offences and two incidents, the judge engaged in a confusing colloquy
with the foreperson and did not clearly answer the question.

[56]

Third, the jury
question raised the issue of whether the jury could reject the complainants
evidence about one of the incidents, but accept her evidence about the other. The
possibility that the jury was rejecting a significant part of the complainants
evidence should have led the judge to provide further instructions on
credibility.

[57]

For the reasons I
explain more fully below, I would allow the appeal and direct a new trial.

[58]

The first issue I
have identified is with respect to the trial judges instructions to the jury
on the interpretation of the indictment. For convenience I repeat the language
of the indictment:

Count 1

[M.R.H.], from
the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at
or near Surrey and Harrison Hot Springs, in the Province of British Columbia,
did, for a sexual purpose, touch, directly or indirectly, with a part of his
body or with an object, the body of J.S., a person under the age of fourteen
years, contrary to Section 151 of the Criminal Code.

Count 2

[M.R.H.],
from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive,
at or near Surrey and Harrison Hot Springs, in the Province of British
Columbia, did sexually assault J.S., contrary to Section 271 of the
Criminal Code.

[59]

The two counts each
covered a five‑year period between October 8, 2006, and October 28,
2011. Underlying the counts were two separate and discrete incidents that the
complainant alleged had occurred within that five‑year period. She said
that the first incident occurred when she was in grade five, in 2007 or 2008,
and spending the night at her grandmothers house. She said the second occurred
when she was in grade six, in 2009, on a camping trip at Harrison Hot Springs.
The accused was charged with two offences  sexual assault and sexual
interference  with respect to each incident. The two counts corresponded to
the two offences, not the two incidents.

[60]

The judge did not
explain to the jury how to interpret the structure of the indictment. In his
original charge to the jury, the judge included the following instruction:

Mr. [H.] testified. He denied he
touched J.S. in the manner she described or for any sexual purpose at any time
during their relationship. In considering the evidence of the accused, you
should consider it as follows:

If you believe the evidence of Mr. [H.]
that he did not touch the complainant in a sexual manner at all, let alone as
described by J.S., you must acquit him.

Even if you do not believe his evidence,
if it raises a reasonable doubt in your mind as to whether he did what J.S.
says at the condo owned by her grandmother
and at Harrison
-- sorry, and
at the Harrison camping trip, you must acquit him.

Finally, even if you disbelieve him and
find his testimony raises no reasonable doubt, you must still acquit him if you
find that the evidence tendered by the Crown does not meet its burden
of
proving the elements of each offence on each occasion set out in the indictment
beyond a reasonable doubt.



In order to convict Mr. [H.]
of the offence of sexual interference, which is charged in Count 1 in the
indictment, the Crown must prove beyond a reasonable doubt the following
elements: one, that Mr. [H.] is the person who actually committed the
offence of sexual interference; two,
the offence of sexual interference
occurred at a time and place referenced in the indictment or either of those
times and places
; three, that [J.] was under the age of 14 at the time;
four, that Mr. [H.] touched her directly or indirectly; and five, that Mr. [H.]
intentionally touched her for a sexual purpose.

[Emphasis
added.]

[61]

The only instruction
the judge gave the jury on the issue of the two offences and two incidents was
his brief statement that the jury had to be satisfied that the offence occurred
at a time and place referenced in the indictment
or either of those times
and places
 (emphasis added). He did not go on to explain this statement.
From other parts of the charge, the jury may have understood that it had to be
satisfied that
both
incidents occurred in order to convict of either
offence. In particular, I have emphasized the use of the conjunctive in the
third paragraph (above) and the words of each offence on each occasion in the
fourth paragraph. From the question the jury later asked, it is evident that
the jurors were indeed confused by this aspect of the charge.

[62]

The second issue
pertains to the judges confusing response to the jury question. For
convenience I repeat the language of the question:

If
we believe the 1st incident, can we convict on this alone?
Find him not
guilty on the 2nd [incident].

[63]

As explained in my
colleagues reasons, the foreperson then advised the judge that it had been the
jurys intention to erase the second part of this question. (For clarity I have
italicized the erased portion.)

[64]

It is evident from
this sequence of events that the jurors were at some point confused about the
difference between the two offences (sexual assault and sexual interference)
and the two incidents (at Surrey and Harrison), and what instructions they were
to follow if they believed that one incident had occurred but not the other.

[65]

The judge responded
in the following manner. I shall set out the entire exchange, with certain
passages identified with letters for convenience:

A. THE COURT: Members of the jury, I apologize for the
delay in responding to the question you posed, but it raised an issue I wanted
to discuss with counsel and reflect on the proper instruction to give. I did
not want to do that in either haste or without the benefit of counsels
assistance. We have been able to speak about that in your absence.

And
first of all, because the question, it appears somebodys pencil broke when the
question was written, I want to make sure I have it correctly. I am reading
from what you passed to me [as read in]:

If we believe the 1st incident, can we
convict on this alone? Find him not guilty on the 2nd

--
and then it goes i-n-c-i, and I am assuming that should say incident.

JURY FOREPERSON: Your Honour, we
withdrew the second part, we would just like to know if we are  can convict on
the first incident alone for both counts.

B. THE COURT: Well, the
answer to that is a little bit different then. Yes, you
may, but your  your question has posed a little bit of a
difficulty in terms of you may convict on the evidence, if you find the
constituent elements have all been proven, but as I say, I may have
misinterpreted, because now I see it is an erasure. I just gathered that the
pencil had run out of steam.

So
as a matter of law, if the Crown has proven beyond a reasonable doubt the
constituent elements of each of the offences, they need not prove both
incidents, one is sufficient.

But
I should carry on to say that if you are having difficulty or rejecting the
evidence of the complainant on the second offence,
that raises a bit of a
problem in terms of reconciling the acceptance of her evidence on one if you
have rejected or raise a reasonable doubt
-- or there is a reasonable doubt
raised in your mind on the second.

So
I took your question to be that you had reached different conclusions. If that
is not the case, and I do not want to go into the discussions you are having in
the jury room, but I need to tell you, I think, counsel, this is -- I am taken
a bit by surprise by the retraction of the second question. But as a matter of
law, the Crown needs prove only one of the incidents, not both, for you to
convict, and the two separate charges relate to separate offences. One is of
sexual interference, the other is of sexual assault, and it is not incumbent
upon the Crown, and I had hoped my charge had made clear earlier, to demonstrate
beyond a reasonable doubt or prove beyond a reasonable doubt that each
happened. One of them is sufficient.

C. JURY FOREPERSON: May I ask another question?

THE COURT: Well, as long as it
is a question on behalf of the jury, yes.

JURY FOREPERSON: Yes, it
pertains to the same. So we would like to know if both -- so theyre  theyre
separate charges for each incident?

THE
COURT: No.

JURY
FOREPERSON: Are both charges relevant to each -- or for both incidents.

THE
COURT: The charges, and again if you look at the indictment, it will become
clear to you, the indictment embraces a period of a number of years, and I do
not -- I do have it in front of me, it embraces the years between 2006 to 2011.
The evidence would tend to demonstrate, at least the allegations arise from
2007 or 8 and 2009, and they are separate offences. But each is evidence --
sorry, each --

JURY
FOREPERSON: We did suspect this, Your Honour, but we just needed clarification.
Some of our jurors were not clear on this and we wanted clarification.

THE COURT: All right. These
charges do not relate to the incidents separate, one from the other. The
incidents are simply evidence underlying each of two separate charges, one of
sexual interference, one of sexual assault. And counsel, if either of you take
any umbrage with those remarks, then now is the time to stand up. I was not
expecting a free flow discussion here.

D. MR. REDEKOPP:
I appreciate that. If I may, My Lord, from what I understand the juror to say
is, is they were wondering if each of the counts relate to each of the
incidents. Is that -- was that the question?

E. JURY
FOREPERSON: That was in part our query.

MR. REDEKOPP:
All right, yes, then Your Honours answer to -- or Your Lordships answer was
fine.

THE
COURT: All right. Does that answer the question then? As I say, I am -- I was
unfortunately -- fortunately reading more into it than perhaps I should have,
because of, as I say, what was at the bottom and it was not clearly erased, so
--

JURY
FOREPERSON: That clear -- that clears it up for us.

THE COURT: All right. Well, then we will
adjourn and I will let you get back to your deliberations.

[Emphasis added.]

[66]

A number of problems
arise with this answer. First, the judge failed to ensure that the question
from the jury was clear (at the passage marked A). Once the foreperson
clarified that the actual question was not the one the judge and counsel had
prepared to answer, the judge failed to give counsel an opportunity to consider
the question in the absence of the jury and make submissions before he answered
it (at the passage marked B).

[67]

Furthermore, the
substance of the judges answer was confusing. He did at first answer the
question correctly by telling the jury that if it believed the complainants
testimony regarding one incident only, that could be sufficient to convict on
both charges. However, he then moved on, without clearly and completely
explaining his answer, to briefly address the issue of credibility (which I
will discuss below). Finally, he concluded by restating that the Crown needed
only to prove that each happened without clarifying if he was referring to
each incident or each offence.

[68]

The colloquy that
followed the judges initial answer to the question reveals that the foreperson
at least remained confused. After hearing the answer, the foreperson again
queried (at the passage marked C), we would like to know if both  so theyre
 theyre separate charges for each incident? The judge answered, No. The
foreperson then repeated the question again, then interrupted the judge as he
was giving his answer. Later in the colloquy (at the passage marked D), counsel
for the appellant restated his understanding of the question, to which the
foreperson responded, That was in part our query (at the passage marked E). The
foreperson did not say what the other part was. Neither the judge nor counsel
sought clarification.

[69]

As I have mentioned,
in the course of his initial answer, the judge referred to, but did not fully
address, the credibility issue that would arise if the jury accepted the
complainants evidence about one incident but not the other. This is the third
issue that I have identified.

[70]

In
R. v. W.(D.)
,
[1991] 1 S.C.R. 742 at 757‑58, Cory J. said in language that
has become the standard for jury charges:

In a case where
credibility is important, the trial judge must instruct the jury that the rule
of reasonable doubt applies to that issue. The trial judge should instruct the
jury that they need not firmly believe or disbelieve any witness or set of
witnesses. Specifically, the trial judge is required to instruct the jury that
they
must
acquit the accused in two situations. First, if they believe
the accused. Second, if they do not believe the accuseds evidence but still
have a reasonable doubt as to his guilt after considering the accuseds
evidence in the context of the evidence as a whole. See
R. v. Challice
(1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in
R. v. Morin
,
supra
, at p. 357.

Ideally,
appropriate instructions on the issue of credibility should be given, not only
during the main charge, but on any recharge. A trial judge might well instruct
the jury on the question of credibility along these lines:

First,
if you believe the evidence of the accused, obviously you must acquit.

Second,
if you do not believe the testimony of the accused but you are left in
reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt
by the evidence of the accused, you must ask yourself whether, on the basis of
the evidence which you do accept, you are convinced beyond a reasonable doubt
by that evidence of the guilt of the accused.

[Emphasis
in original.]

[71]

It was apparent from
the exchange with the foreperson that the jury or some members of it had
accepted the complainants evidence about one incident but not the other. The
jury was, of course, entitled to accept all, part, or none of her testimony. However,
there was no obvious rational basis for making differential findings regarding
her credibility with respect to each incident, and no other evidence that
either incident occurred. In these circumstances, the judge was rightly
concerned that the jury might not have been considering the implications of an
adverse credibility finding on the second incident in its assessment of the
first. It was therefore incumbent on the judge to repeat or amplify his
instructions on credibility.

[72]

As Wood J.A.
explained in
C.W.H.
,
supra
, at 154, the judge must instruct
the jury that the rule with respect to reasonable doubt applies to the issue of
credibility. Here, the judge ought to have reminded the jury that any
reasonable doubt must be resolved in favour of the accused; that even if it did
not accept all of the accuseds testimony, it could still accept some of it;
that it should not see its task as deciding between two competing versions of
events; that it could not decide the case simply by choosing between the
evidence of the complainant and that of the accused; and that it had to
consider all the evidence and decide whether the Crown had proven beyond a reasonable
doubt that the events that formed the basis of the crimes charged had in fact
taken place:
R. v. J.H.S.
, 2008 SCC 30 at para. 15.

[73]

Without having given the jury clear instructions on credibility, the
judge left the issue and returned to the question about the charges. At the
conclusion of the exchange, counsel and the judge appeared satisfied and the
jury returned to its deliberations. The judge never returned to clarify the
credibility issue.

[74]

I agree with my
colleagues discussion of the case law concerning the importance of clearly
answering questions from a jury at his paras. 35‑41 and in
particular his summary at para. 41.

[75]

We part company on
the question of whether the judge did clearly, carefully, and correctly
answer the question or questions. In my view, the judge did not do so. The jury
did not receive the assistance to which it was entitled. This Court should
intervene where the instructions may have misled the jury or failed to resolve
the confusion that led it to ask the question in the first place.

[76]

In summary the judge
erred in his instructions in the following ways:

·

The judge ought to
have clarified the question and then given counsel an opportunity to make
submissions as to the appropriate response.

·

The judge erred in
entering into a free-flowing exchange with the jury foreperson and counsel for
the appellant in which he failed to give a clear, concise, and unambiguous
answer to the question.

·

The judge should
have clarified that the two counts in the indictment did not correspond to the
two incidents but instead to the two offences based on the two incidents,
because it was obvious that the foreperson remained confused about it.

·

The judge should
have re-instructed the jury on the issue of credibility in accordance with
W.(D.)
.

[77]

For these reasons I
would allow the appeal and order a new trial.

The
Honourable Madam Justice Garson

I agree:

The Honourable Mr. Justice
Harris


