



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.B., 2019 ONCA 591

DATE: 20190711

DOCKET: C64259

Rouleau, Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.B.

Appellant

Richard Litkowski, Anthony Bryant and Mitchell Huberman,
    for the appellant

Kevin Rawluk, for the respondent

Heard: November 28, 2018

On appeal from the conviction entered on May 3, 2017 and
    the sentence imposed on November 20, 2017 by Justice Jane A. Milanetti of the
    Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

Predictability is not an inherent characteristic of the criminal jury
    trial. Unless, of course, we equate predictability with its antithesis,
    unpredictability. A modern criminal jury trial has too many moving parts to
    ensure an uneventful journey from departure to final destination.

[2]

Jury deliberations and judicial management of them can cause a
    faultlessly conducted jury trial to come undone in its final stages.
    Deliberation impasses and judicial attempts to dislodge them. Jury questions
    and inadequate responses. And rushes to judgment.

[3]

During deliberations, which extended to a third day in a case that
    involved neither legal complexity nor factual intricacy, the jury twice
    reported deliberation impasses; sought materials used in cross-examination but
    not filed as exhibits at trial; asked for transcripts of the evidence of the
    two principal witnesses, then changed their mind about one of them; and
    disclosed the unavailability of one juror if the deliberations extended beyond
    the third day.

[4]

In this case, the appellant, J.B., asks us to set aside three
    convictions of sexual offences against a single complainant, V.B., principally
    on grounds that have to do with the trial judges responses to requests made
    and questions asked by the jury during deliberations.

[5]

These reasons explain why I would allow the appeal, set aside the
    convictions entered at trial and order a new trial on the counts contained in
    the indictment.

The Factual Background

[6]

The grounds of appeal advanced do not require more than a brief overview
    of the allegations of the complainant, the commencement of proceedings and the
    response of the appellant. The trial was brief, the witnesses few and the
    evidence uncomplicated.

The Allegations

[7]

The complainant was 20 years old when she testified at trial. The
    appellant was 73. They were related to one another.

[8]

The complainant testified that the conduct which formed the
    subject-matter of the three counts contained in the indictment occurred between
    2005 and 2010, when she was an elementary school student in grades four to eight.
    The conduct included touching and pinching her breasts and, in some instances,
    touching her vaginal area. It occurred at night while she and the appellant were
    watching television. On some occasions, it happened during the school year, at
    other times, during summer vacation. These touching incidents occurred at least
    four times.

[9]

The complainant also recalled an incident that happened while she was in
    the shower. She had closed the bathroom door, but heard somebody move the
    doorknob from outside. No one entered. On future occasions, she locked the
    bathroom door when she had a shower. The appellant told her not to do so,
    citing safety concerns.

Reporting the Incidents

[10]

The
    complainant reported these incidents to her mother, at least in a general
    sense, when she (the complainant) was in grade eight, or shortly after grade
    eight ended. She had put the disclosure off because she was afraid to tell her
    mother. She made her disclosure while she and her mother were in the car at
    Walmart. Her mother refused to let the complainant out of the car until the complainant
    told her what had happened. Thereafter, the complainant was not allowed to go
    to the appellants house alone or to stay there overnight.

[11]

When
    the complainant was 16 years old she went out to British Columbia for the
    summer. Later, she attended secondary school there and disclosed what the
    appellant had done to her to a guidance counsellor and a teacher at the school.
    She spoke to investigators about two or three years prior to the trial.

The Appellants Account

[12]

The
    appellant immigrated to Canada in 1977. In his testimony at trial, he denied
    groping the complainants breasts, pinching her nipples or fondling her vaginal
    area. He also contradicted the complainants claim about trying the doorknob on
    the bathroom door while the complainant was in the shower. He did acknowledge
    having tickled the complainant when she visited his home.

The Grounds of Appeal

[13]

The
    appellant advances four grounds of appeal against conviction. Three focus on
    exchanges between the trial judge and jury during deliberations, the fourth on
    the trial judges charge to the jury.

[14]

I
    would paraphrase the grounds of appeal as claims that the trial judge erred:

i.

in providing the jury with transcripts of portions of the appellants
    post-arrest police interview on which he was cross-examined at trial, but which
    were not filed as exhibits, rather than playing the audio recording of the
    actual cross-examination of the appellant on those excerpts;

ii.

in failing to replay for the jury the audio recording of the appellants
    testimony in accordance with their original question and despite their later
    withdrawal of that request, leaving only an imbalance created by replaying the
    audio recording of the complainants complete testimony;

iii.

in exhorting the jury to reach a verdict without making it clear, once
    apprised of the looming unavailability of one juror to continue, that there was
    no time limit imposed on the deliberation; and

iv.

in failing to adequately relate the evidence to the issues and the
    position of the defence, so that the jury appreciated the value and effect of
    the evidence.

Ground #1: The Police Statement Issue

[15]

This
    ground of appeal focuses upon the trial judges response to one aspect of a
    two-part request by the jury after the foreperson had earlier announced a
    deliberation impasse and the trial judge had provided an exhortation to the
    jury.

The Essential Background

[16]

The
    appellant was interviewed by investigators after his arrest. The interview was
    audio and video recorded and transcribed. At the conclusion of a pre-trial
    application, the trial judge ruled that the interview was voluntary. The Crown
    did not adduce the statement as part of its case in-chief. Rather, it held it
    for cross-examination in the event, as happened, that the appellant testified.

[17]

The
    Crown cross-examined the appellant on several passages in his police interview
    on the basis that those passages were inconsistent with the appellants trial
    testimony. The Crown did not seek to file as exhibits transcripts of the
    passages on which she cross-examined the appellant.

The Jury Request

[18]

As
    proceedings began on the day following the charge to the jury and the first
    exhortation, the trial judge received a note from the jury containing two
    requests. What was sought, if possible, was a transcript of the appellants
    interrogation.

[19]

With
    the agreement of counsel, the trial judge recalled the jury and explained that
    the full transcript could not be provided since the interview was not in
    evidence. A discussion followed. A juror said:

We want to hear what was said on the video clips that were
    presented to the court.

[20]

The
    trial judge invited the jury to put their request in writing. About 45 minutes
    later, the jury responded in writing:

For a transcript of the police interrogation that was presented
    to the court. Our request is limited to only what was introduced as evidence
    from the police interrogation.

The Response

[21]

Counsel
    compiled for the jury a packet of the transcribed portions of the police interview
    on which the Crown had cross-examined the appellant. The jury was not provided
    with transcripts of the actual cross-examination on these excerpts of the
    police interview. Nor does it appear to have been suggested that the jury be
    permitted to listen to the audio recordings of the relevant portions of the
    cross-examination. The procedure followed appears to have been with the
    agreement of counsel on both sides.

The Arguments on Appeal

[22]

The
    appellant begins with a principle of evidence. When a witness is cross-examined
    on a prior out-of-court statement alleged to be inconsistent with the witness
    in-court testimony on the same subject, the trier of fact may consider the
    fact, nature and extent of any inconsistency between the two accounts in
    assessing the weight to assign to the witness in-court testimony. But absent
    adoption by the witness of the truth of the out-of-court statement while giving
    evidence at trial, the trier of fact is not entitled to consider the
    out-of-court statement as proof of the truth of its contents.

[23]

In
    this case, the appellant says, the out-of-court statement was used to impeach
    his credibility as a witness. As a tool of impeachment, the portions of the
    out-of-court statement put to the appellant in cross-examination had no
    intrinsic evidentiary value. It follows, according to the appellant, that
    copies of relevant portions of the transcript of that statement should not have
    been provided to the jury for their review.

[24]

The
    appellant contends that the trial judge should have responded to the jurys
    request by playing the audio recordings of the relevant passages in the
    cross-examination of the appellant at trial, in conjunction with a playback of
    the appellants evidence on those issues from his evidence in-chief and in
    re-examination. In this way, the appellant says, the jury would hear not only
    the substance of the prior statement, but also the appellants explanation for
    any inconsistency there may have been between the prior statement and his trial
    testimony. Had this procedure been followed, the appellant submits, the jury
    might have been better equipped to evaluate the impact of any alleged
    inconsistency on his credibility, and thus, the weight to assign to his
    evidence.

[25]

The
    respondent repudiates this claim of error. The trial judge was required to
    respond to the jurys request. She did so. The method she chose responded
    directly and completely to the jurys request and caused no prejudice to the
    appellant. The jury did not ask for a replay of the audio recording of those
    aspects of the cross-examination of the appellant at trial. To follow the
    procedure now suggested by the appellant would not have been responsive to the
    jurys request.

[26]

The
    trial judges decision to provide copies of the relevant parts of the police interview
    caused the appellant no prejudice. As an out-of-court statement of an accused,
    the respondent says, the value of the excerpts was not limited to testimonial
    impeachment, but extended to the truth of their contents. Thus, there was no
    danger of jury misuse, all the more so because the jury had been properly
    instructed about their evidentiary value in the charge.

[27]

The
    respondent adds that the position the appellant advances in this court,
    claiming prejudice from the procedure followed, rings hollow in light of what
    happened at trial. There, experienced defence counsel, whose competence is not
    in issue on appeal, subscribed to the manner in which the judge proposed to
    respond to the jurys request. And, in every likelihood, for good reason. After
    all, a replay of the relevant portions of the cross-examination of the
    appellant on the audio recording would not have been beneficial to the defence
    position.

The Governing Principles

[28]

To
    assess this claim of error, I find it helpful to enlist the assistance of some disparate
    strands of principle extracted from our adjective law.

[29]

To
    begin, like any witness who testifies, an accused may be cross-examined on
    matters that may impair his credibility:
R. v. Davison, DeRosie and
    MacArthur
(1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 441, leave to
    appeal refused, [1974] S.C.R. viii.

[30]

As
    is the case with an ordinary witness, an accused who testifies may be
    cross-examined on prior out-of-court statements alleged to be inconsistent with
    his or her in-court testimony about the same subject-matter. But where the
    out-of-court statement on which the accused is cross-examined is one made to a
    person in authority, the Crown must ensure that any applicable admissibility
    rules have been satisfied, including the common law requirement of
    voluntariness:
R. v. Fischer
, 2005 BCCA 265, 197 C.C.C. (3d) 136, at para.
    41, leave to appeal refused, [2005] S.C.C.A. No. 308;
R. v. Groves
,
    2013 BCCA 446, 301 C.C.C. (3d) 430, at paras. 33, 42.

[31]

On
    the other hand, unlike an ordinary witness, whose prior inconsistent statement
    only becomes substantive evidence if the witness adopts it as true by words,
    action, conduct or demeanour while testifying, an accused witness prior
    inconsistent statement may be used as substantive evidence by the trier of fact
    for two purposes. First, as with an ordinary witness, the prior inconsistent
    statement is relevant to the
credibility
of the accused as a witness. Second,
    and unlike an ordinary witness, the prior inconsistent statement of an accused
    who testifies is admissible as substantive evidence as an admission even without
    adoption:
Groves
, at paras. 42-44;
R. v. Mannion
, [1986] 2 S.C.R.
    272, at pp. 277-78.

[32]

Witnesses
    in criminal proceedings may be cross-examined on prior statements inconsistent
    with their trial testimony in a variety of different circumstances. A partys own
    witness, for example, under s. 9(2) of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5 (
CEA
)
.
    Or an opposite partys witness under ss. 10(1) or 11 of the
CEA
. As a
    general rule, in this province at least, where the purpose of the
    cross-examination is testimonial impeachment, the prior inconsistent statement,
    which has no intrinsic value as evidence, is not filed as a trial exhibit:
R.
    v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 53-54;
R. v.
    McShannock
(1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56;
R. v.
    Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 50. Thus, it does not
    go to the jury room with other exhibits for jury review during deliberations.

[33]

Turning
    next to procedural considerations, in particular, the obligation of trial judges
    to answer questions or respond to requests from deliberating juries.

[34]

Questions
    from deliberating juries are important. Likewise, the answers. Each question,
    clarified by inquiry should the circumstances warrant, should be answered
    clearly, correctly, comprehensively and in a timely way. If necessary for an
    understanding of the response, the answer may require a reminder about
    something said before, as for example, during the charge:
R. v. S. (W.D.)
,
    [1994] 3 S.C.R. 521, at p. 528-29, citing
R. v. W.D.
, [1991] 1 S.C.R.
    742, at pp. 759-60;
R. v. Ellis
, 2013 ONCA 9, 293 C.C.C. (3d) 541, at
    paras. 40-41.

[35]

Sometimes,
    as in this case, a deliberating jury requests portions of the evidence adduced
    at trial. The testimony of witness X. What witness Y said about a particular
    event or on a specific topic. But, from time to time, deliberating juries ask
    for something that is not evidence in the true sense. A statement on which a
    party cross-examined a witness, for example, under ss
.
9(2), 10(1) or 11 of the
CEA
. A report to which an
    expert referred or on which she was cross-examined, but which was not filed as
    an exhibit. Something used by a witness to refresh his or her memory. How is a
    trial judge to respond to questions or requests of this kind? Or, put more
    generally, to queries that seek materials used in the examination or
    cross-examination of witnesses, but which are not filed as exhibits at trial?

[36]

In
R.
    v. De Bellefeuille
(1994), 39 B.C.A.C. 276 (B.C. C.A.), the jury asked for
    copies of reports of two psychiatrists who had been called as defence witnesses
    to advance a claim that the accused was not criminally responsible on account
    of mental disorder or, if criminally responsible, was guilty of manslaughter
    rather than murder because of diminished capacity. The trial judge told the
    jury that the reports were not evidence, hence were not available for jury use
    during deliberations:
De Bellefeuille
, at paras. 14-16.

[37]

The
    Court held that the answer provided by the trial judge was legally correct, but
    fell short of being an adequate response in the circumstances of the case. The
    trial judge did not inquire about the nature of the jurys concern. The answer
    may have had the effect of discouraging the jury from pursuing their concern
    and left them with the understanding that they were to make do with what they
    had. The judge did not tell the jury that they could have evidence read back. Nor
    did he encourage them to reformulate their question to more precisely reflect
    the real substance of their problem:
De Bellefeuille
, at para. 32.

[38]

The
    British Columbia Court of Appeal allowed the appeal, set aside the conviction
    of first degree murder and ordered a new trial. The following passage in the
    reasons of Prowse J.A. for the court explains why a miscarriage of justice
    resulted from the answer given:

I am satisfied that the trial judge erred in failing to give
    adequate instruction to the jury in reply to their question. In my view, in
    addition to advising the jury that they were not entitled to a copy of the
    reports of Dr. Lohrasbe and Dr. Mohammed and the reason therefore, he should
    have reminded them that they were entitled to have any evidence read back which
    they thought would assist them. Given the nature of their request, I also
    conclude that he should have encouraged them to reformulate their question to
    cut to the essence of their problem. I do not agree with the Crown that to do
    so would interfere with the jurys deliberations.

See
De Bellefeuille
, at para. 35.

[39]

A
    similar situation arose in
R. v. Grant
, 2009 MBCA 9, 240 C.C.C. (3d)
    462, leave to appeal refused, [2009] S.C.C.A. No. 94. There, defence counsel
    played recordings to several witnesses and made suggestions to the witnesses about
    what those recordings disclosed. The recordings were of conversations between a
    police agent and one Dew, who was not called as a witness. None of the
    witnesses agreed with the suggestions. The recordings were not filed as
    exhibits.

[40]

During
    deliberations, the jury sought information about the recordings on which the
    witnesses were cross-examined. They asked for a reference to its location in
    the exhibits filed at trial or a copy of it. In his response, the trial judge
    reminded the jury of their obligation to decide the case on the basis of the
    evidence presented at trial and that the recordings had not been filed as an
    exhibit. The trial judge then invited the jury to refer to a reference to the
    evidence in his charge, a written copy of which he had provided to the jury for
    their use during deliberations.

[41]

On
    appeal, the appellant argued that the trial judge had erred in finding that the
    recordings were not exhibits at trial. The Manitoba Court of Appeal disagreed.
    The audiotapes had not been entered as exhibits. Further, no witness adopted
    any suggestion made by cross-examining counsel based on the contents of the
    recordings. It followed that the recordings were of no evidentiary value:
Grant
,
    at paras. 79-80, 83. In addition, the court pointed out, the trial judge had
    provided some guidance to the jury on the issue on which it had sought
    assistance:
Grant
, at para. 84.

The Principles Applied

[42]

For
    reasons that I will develop, I would give effect to this ground of appeal. In
    my view, despite the agreement of trial counsel with the procedure followed,
    the trial judges response to this jury request reflects error, as I explain
    below.

[43]

I
    begin with the uncontroversial: the propriety of cross-examination on the
    out-of-court statement and its evidentiary value.

[44]

Once
    established as voluntary and free of constitutional taint, the out-of-court
    statement of the appellant to investigators was available for evidentiary use
    by the Crown. But rather than tendering the statement for substantive purposes
    as part of her case in-chief, the trial Crown, as she was entitled to do,
    retained the statement for use as a prior inconsistent statement in
    cross-examination of the appellant should he testify in his own defence.

[45]

In
    accordance with the practice in this province when a witness is cross-examined
    on a prior inconsistent statement, neither the statement as a whole nor the
    specific portions of it on which the appellant was cross-examined was filed as
    a numbered exhibit. Because it was not filed in whole or in part as a numbered
    exhibit, it did not become part of the evidence, and the portions of the statement
    should not have been sent to the jury room.

[46]

The
    evidentiary value of a prior inconsistent statement on which a witness is
    cross-examined does not depend on whether the statement or relevant portions of
    it are filed as a numbered exhibit. The prior inconsistent statement of a
    non-accused witness has no intrinsic evidentiary value. That a non-accused
    witness has given a prior statement inconsistent with his or her testimony is a
    factor for the trier of fact to take into account in assessing the credibility
    of the witness at trial. It is only by adoption by the non-accused witness at
    trial of the truth of the contents of the prior statement that those contents
    become available for substantive use.

[47]

Where
    the witness cross-examined on the prior inconsistent statement is the accused,
    the situation is different. The statement or relevant portion on which the
    accused is cross-examined is received for substantive purposes under the
    admissions doctrine even without adoption. The statement also retains its
    impeachment value as a prior inconsistent statement.

[48]

In
    this case, the trial Crowns purpose in cross-examining the appellant on
    various parts of his out-of-court statement was to impeach his credibility as a
    witness who, in his trial testimony, had denied any criminal conduct. The
    portions of the out-of-court statement used for impeachment purposes were not
    filed as numbered exhibits, and thus, should not have been provided to the jury
    for review during deliberations.

[49]

Despite
    their intrinsic evidentiary value as admissions, on which the Crown appears not
    to have placed any reliance, these excerpts should not have been sent to the
    jury room during deliberations even with the consent of experienced defence
    counsel. They were not made numbered exhibits at trial. To send them to the
    jury room after the evidence portion of the trial had been completed was
    essentially to permit the introduction of further evidence during
    deliberations. This was an error.

[50]

In
    my view, the trial judge should have advised the jury that because the excerpts
    they requested were not made exhibits at trial, those excerpts were not part of
    the evidence and could not be provided to them for review in their jury room.
    The judge should then have told the jury that arrangements could be made to
    replay or read back those portions of the cross-examination on the excerpts from
    the out-of-court statement. In this way, the jury not only would have heard the
    substance of the out-of-court statement with which the appellant was confronted,
    but also the appellants explanation of the inconsistency, if any, between the
    statement and his trial testimony.

[51]

In
    the result, what happened here was that the jury was provided with portions of
    the appellants out-of-court statements as if they have been filed as exhibits
    and without the context in which they were used at trial  the
    cross-examination of the appellant. I will consider the impact of this error on
    the fairness of the trial and the reliability of the verdict after I have
    examined the remaining grounds of appeal.

Ground #2: Failure to Play Back the Appellants Testimony

[52]

This
    ground of appeal also focuses on and asserts error in the judges response to
    the jurys request to play back evidence to assist them in their deliberations.
    A brief reference to the background is helpful to furnish the perspective
    necessary to evaluate the claim.

The Essential Background

[53]

The
    relevant events took place during the second day of the jurys deliberations
    after they had already reported an inability to reach a unanimous verdict and
    been exhorted within hours of the conclusion of the charge.

The Request

[54]

Late
    in the morning on the second day of deliberations, the jury asked for a transcript
    of the testimony, cross-examination and re-examination of the appellant and
    complainant. After discussing with counsel the lack of any transcript of the
    evidence, but the availability of a recording of the testimony, the trial judge
    advised the jury that:

i.

a transcript of the evidence requested was not available; but

ii.

a recording of the evidence was available and could be replayed for the
    jury.

The jury confirmed its request to have the recording of
    the evidence of the complainant and appellant replayed.

The Playback

[55]

The
    playback of the complainants testimony in its entirety began and continued
    until the luncheon recess.

The Discussion Request

[56]

When
    the court resumed after the luncheon recess, the trial judge received another
    request from the jury. The request was that the jury have a break when the
    replay of the complainants evidence had been completed so that they could
    discuss her testimony prior to hearing the replay of the appellants evidence.

[57]

The
    replay of the complainants testimony was completed at about the time of the
    dinner recess. The trial judge sought the jurys guidance about their wishes
    for discussing the complainants testimony in accordance with their earlier
    request.

The Deadlocked Note

[58]

Instead
    of responding to the judges request about time for discussion of the
    complainants testimony, the jury replied that in view of the evidence, they were
certain
that they were not able to reach a unanimous verdict.

The Second Exhortation

[59]

With
    the agreement of counsel, the trial judge again exhorted the jury before
    adjourning the proceedings until the following morning. The jury was to resume
    its discussions at 9:00 a.m. The court would reconvene for the replay of the
    appellants testimony at 10:00 a.m.

More Notes from the Jury

[60]

When
    proceedings resumed on the morning of what was to be the third day of jury
    deliberations, the trial judge received two further notes from the jury. One
    gives rise to a separate ground of appeal, which I will discuss later. The
    second is germane to this ground. It read:

Upon discussion with the group, we are all in agreement that we
    no longer wish to review [J.B.]s testimony. Our discussion, as a group, has
    moved past the point that we were at when we initially made the request and all
    are in agreement that it would no longer be beneficial towards our discussion.
    Our time can be better spent deliberating everything we have heard to date.

The Replay of the Appellants Evidence

[61]

The
    trial judge and counsel discussed the jurys note about not wanting to hear a
    replay of the appellants testimony. All agreed that the recordings would not
    be replayed. No replay took place.

The Arguments on Appeal

[62]

The
    appellant contends that the trial judge erred in failing to
require
the jury to listen to the recording of the appellants testimony in accordance
    with their original request. The trial judge was not required to accept the
    jurys revised position. The fundamental principle is that the jury should
    receive a complete, accurate and balanced perspective. A replay of the
    appellants testimony was essential to ensure that the jury would not give
    undue weight to the complainants testimony. This is all the more so when the
    jury had twice reported an inability to reach a unanimous verdict.

[63]

The
    appellant accepts that a trial judge is under no obligation to answer questions
    later withdrawn by the jury. But sometimes, he says, to ensure fairness the judge
    needs to make further inquiries and perhaps respond to the question or request
    even if it has been withdrawn. In this case, especially in light of the jurys
    emphatic statement about their inability to agree on a verdict, the significant
    reversal of their original request and the potential problem with one juror
    continuing to participate in deliberations beyond that day (discussed later),
    it was incumbent on the trial judge to address the jury and make further
    inquiries. In these singular circumstances, the appellant concludes, the trial judge
    should have directed the recordings of the appellants evidence be replayed to
    ensure balance and to give effect to the jurys original request.

[64]

The
    respondent rejects any suggestion of error in connection with the trial judges
    handling of the jurys withdrawal of their request for a replaying of the
    recording of the appellants testimony.

[65]

At
    the outset, the respondent points out, the position advanced here is the
    antithesis of what was put forward at trial by experienced defence counsel. At
    trial, defence counsel not only failed to insist that the appellants testimony
    be replayed for the jury when the original request was withdrawn, but did not
    even ask that the original request be met. It is a reasonable inference that
    this was a tactical decision of trial counsel grounded in the belief that the
    defence position was better advanced through exposure of the frailties of the
    complainants testimony than by a replay of the appellants evidence with its
    flaws on full display.

[66]

The
    respondent says that we should also credit the jury with sufficient
    intelligence and common sense to recognize and express their needs to continue
    their process of deliberation towards a verdict. After all, they are the people
    in the room. The trial judge was right to give effect to their decision not to
    have the testimony of the appellant replayed.

[67]

Even
    if we were to accept that the trial judge should have countermanded the jurys
    unequivocal reversal in connection with the appellants testimony, the failure
    to have it replayed for the jury, the respondent says, caused no substantial
    wrong or miscarriage of justice. In this respect, we should have in mind that
    the jury unanimously and unequivocally withdrew its request to rehear the
    appellants testimony. Experienced defence counsel did not even ask that it be replayed.
    In addition, the jury deliberated a further two hours before returning its
    verdict and did not rush to judgment immediately after rehearing the testimony
    of the complainant. Rather, it sought and received further instructions about
    the elements of the offences charged before doing so.

The Governing Principles

[68]

It
    is unnecessary to repeat what has already been said about the importance of
    in-deliberation questions and requests by the jury and the trial judges
    obligations in response. More to the point here are the obligations of the
    trial judge in responding to in-deliberation requests by the jury for excerpts of
    evidence, especially where the requests change over time.

[69]

The
    nature of the judicial response, as might be expected, is linked to the particular
    terms of the jurys request. For example, where the request is for the evidence
    of a witness or witnesses about a specific subject or
en bloc
, as a
    general rule, the response should include
all
the evidence of the
    witness on the subject or generally, depending on the request:
Olbey v. R.
,
    [1980] 1 S.C.R
.
1008, at pp.
    1027-28;
R. v. D. (D.)
(1998), 129 C.C.C. (3d) 506 (Ont. C.A.), at paras.
    7-9, affd on other grounds, 2000 SCC 43, [2000] 2 S.C.R. 275;
R. v. C.D.B.
,
    2015 BCCA 94, 320 C.C.C. (3d) 60, at para. 19;
R. v. Stewart
, [1969] 2
    C.C.C. 244 (B.C. C.A.), at pp. 251-52.

[70]

In
Olbey
,
    the jury asked for a read back of the evidence of a Crown witness and of the
    appellant about events that occurred after a specific time. The court reporter
    began to read back the testimony of the Crown witness, but stopped near the end
    of the examination-in-chief when the jury foreperson said that the jury did not
    wish to hear anymore, and that it was not necessary to hear the remainder of
    the witness testimony or that of the appellant. The court reporter did not
    read back any more evidence.

[71]

The
    Supreme Court of Canada held that the trial judge had erred in failing to have
    the cross-examination of the Crown witness on that part of her testimony read
    back to the jury. The court also considered that it would have been a simple
    matter to have read back the appellants evidence on the issue, or at least to
    have reminded the jury and recalled to their minds its essential features:
Olbey
,
    at p. 1029. But the court applied the proviso to uphold the conviction. In
    doing so,
McIntyre J.
, who
    delivered the judgment of the majority, took into account several factors, such
    as the whole of the evidence, the nature of the killing and all the surrounding
    circumstances, including the significant fact that the jury did not wish to
    hear a read back of any further testimony: see
Olbey
, at pp. 1029-30.

[72]

In
D.
    (D.)
,
the jury requested a
    read back of certain portions of the examination-in-chief of the complainant.
    Defence counsel asked the trial judge to have relevant portions of the
    cross-examination read back as well. The trial judge refused defence counsels
    request because the jury had only asked for the examination-in-chief. This
    court, applying
Olbey
, held that the trial judge had erred in failing
    to reread relevant portions of the cross-examination that significantly amplified
    and qualified the complainants evidence-in-chief:
D. (D.)
, at paras. 7-9.
    This ground of appeal was not in issue on the further appeal to the Supreme
    Court of Canada.

[73]

In
R.
    v. Ferguson
(2000), 142 C.C.C. (3d) 353 (Ont. C.A.), the jury asked for a transcript
    of the Crowns closing address. Counsel agreed that the address should be
    provided. The jury received it. On appeal, it was argued that the request
    should have been refused or, in the alternative, a transcript of defence counsels
    closing should have been provided. A majority of this court ordered a new trial
    on this ground. Laskin J.A. dissented. He would have dismissed the appeal. The
    Supreme Court of Canada allowed a further appeal by the Crown and reinstated
    the conviction entered at trial substantially for the reasons of Laskin J.A.:
R. v. Ferguson
, 2001 SCC 6, [2001] 1 S.C.R. 281, at para. 1.

[74]

In
    his dissent, Laskin J.A. held that when a deliberating jury requested the
    closing address of one party, there was no obligation on the trial judge to
    give the jury the closing address of any other party. To fail to do so was not
    an error of law, although in some cases it may be or appear so unfair not to do
    so that a miscarriage of justice may occur:
Ferguson
, at paras. 85-86.

[75]

In
    concluding that the failure to provide a copy of the defence closing in
Ferguson
had not caused a miscarriage of justice, Laskin J.A. considered:

i.

the nature of the request, that is to say, for a closing address, rather
    than evidence adduced at trial;

ii.

the absence of objection by defence counsel;

iii.

the nature of the closing address of the Crown; and

iv.

the congruency between the jurys request and the judges response.

See
Ferguson
, at paras. 88-96.

[76]

Two
    further authorities warrant brief mention. Each involves a request for portions
    of the evidence adduced at trial by a deliberating jury.

[77]

In
R.
    v. Hobart, Fogel and Doolin
(1982), 65 C.C.C. (2d) 518 (Ont. C.A.), the
    jury asked to hear telephone calls of Doolin and Fogel as well as Doolins
    conversation with the police on arrest and Fogels testimony about his
    telephone call. Part way through the rereading of the cross-examination of one
    of the officers involved in Doolins statement to police, the foreperson of the
    jury told the trial judge that the jury members were indicating weve heard
    enough. The jury was directed to retire, then recalled to hear the balance of
    the cross-examination of the police officer, but nothing else.

[78]

After
    the jury retired, they sent a second note to the trial judge. Because of the
    confusing nature of this note, the judge recalled the jury and spoke with the
    foreperson. In the result, it became clear that the jury had heard enough and
    withdrew its request to hear Fogels evidence explaining his telephone
    conversation:
Hobart
, at p. 541.

[79]

On
    appeal, counsel argued that having heard the tape of the telephone conversation,
    the trial judge was required to read to them Fogels explanation of that
    conversation. Martin J.A. rejected the argument. He held that
Olbey
did not go so far as to
require
the read-back of Fogels testimony about
    the telephone conversation despite the jurys emphatic statement that they did
    not wish to hear it:
Hobart
, p. 543. At all events, the failure to
    read back Fogels explanation caused no substantial wrong or miscarriage of
    justice:
Hobart
, at p. 543.

[80]

In
R.
    v. Noftall
(2004), 181 C.C.C. (3d) 470 (Ont. C.A.), over the objections of
    defence counsel and later Crown counsel, the trial judge provided the jury with
    the complainants videotaped statement under s. 715.1 of the
Criminal Code
    of Canada
, R.S.C. 1985, c. C-46
.
    This court was satisfied that the procedure followed did not cause the
    appellant any prejudice, even though the jury did not rehear or receive a replay
    of the complainants cross-examination. Relevant factors included:

i.

the absence of any cogent evidence pitted against the contents of the
    videotaped statement;

ii.

the judges instruction that the videotape was only one piece of
    evidence; and

iii.

the judges summary of the relevant portions of the cross-examination of
    the complainant in the charge to the jury.

See
Noftall
, at paras. 37-39.

The Principles Applied

[81]

As I
    will briefly explain, I would not give effect to this ground of appeal.

[82]

First,
    in this case, the jurys note indicated that their collective decision that a
    replay of the appellants testimony was no longer beneficial was the product
    of substantial discussion that resulted in their group decision. The record
    reveals no basis upon which to question their decision nor the firmness and
    certainty of it.

[83]

Second,
    this is a case in which the jury heard
all
the complainants evidence,
    including the cross-examination. In other words, the review of her evidence was
    not unbalanced or one-sided. The frailties, inconsistencies and qualifications
    exposed in cross-examination were on full display. The contrary evidence of the
    appellant, even without a replay, was simple, straightforward and easily
    recalled: the offences alleged never occurred. Full stop.

[84]

Third,
    defence counsel, whose competence and level of assistance is not challenged,
    did not ask, let alone insist that the appellants testimony be replayed for
    the jury. And so it was that the jurors memories were not refreshed about any
    inconsistencies, frailties and implausibilities in the appellants testimony as
    they surely would have been by rehearing it.

[85]

Fourth,
    and relatedly, the appellant seeks to re-engineer in this court a tactical
    decision made at trial by experienced counsel closely attuned to trial fairness
    concerns. In effect, the position now advanced is to characterize a decision
    rooted in trial fairness considerations as productive of a miscarriage of
    justice. It is a bridge too far on this record.

Ground #3: The Exhortations and the Rush to Judgment

[86]

This
    ground of appeal focuses on an exchange between the trial judge and the jury in
    response to a communication received from a member of the jury whose ability to
    participate in the deliberations was at risk in the event that deliberations
    extended into a fourth day.

The Essential Background

[87]

The
    background about the jurys several requests and the trial judges responses as
    the jurys deliberations continued has already been described and need not be
    repeated in any detail. Yet some features provide valuable context for the
    understanding of this ground of appeal.

The First Exhortation

[88]

The
    trial judge charged the jury on May 1, 2017. About five hours later, the
    foreperson sent a note to the trial judge reporting on the jurys inability to
    reach a unanimous verdict. Counsel agreed that the judge should exhort the
    jury. The trial judge exhorted the jury. Neither counsel objected to what the
    trial judge said. After the exhortation, the jury retired for the evening
    without further deliberation.

The Second Exhortation

[89]

The
    replay of the recording of the complainants testimony was completed at about
    the time of the dinner recess on the second day of jury deliberations. The
    trial judge then directed the jury to retire and asked their advice about
    further deliberations that evening. About 20 minutes later, the foreperson
    reported a
certainty
that the jury would not be able to reach a
    unanimous verdict.

[90]

In
    accordance with the joint request of counsel, the trial judge again exhorted
    the jury. No further deliberations took place that evening.

The Juror Deliberation Issue

[91]

When
    court resumed on the morning of May 3, 2017, the trial judge received and
    advised counsel of two further communications from the jury. One reversed the
    jurys earlier request for a replay of the appellants testimony. The other was
    from one of the jurors; in its material part, the note reads:

I will be unable to attend court on Thursday as my wife  will
    have to leave home [at] 7:30 am.  We have 18 cats at home that require
    attention. We have no other way to look after them. If the trial closes today,
    I will be okay. If not I have a major problem.

[92]

The
    trial judge did not think it necessary to make a decision about the continued
    participation of the affected juror at that time. The problem with the jurors
    continued participation would not arise until the following day, May 4, 2017.
    The trial judge said nothing to the jury about the note.

The Further Question

[93]

About
    20 minutes later, the jury sent another note seeking further clarification
    about the difference between the charges of sexual interference and sexual
    assault as it relates to the case.

[94]

About
    25 minutes later, with the assistance of counsel, the trial judge answered the
    jurys question. She said nothing to the jury about receipt of the jurors note
    about continuing deliberations the following day.

The Verdict

[95]

About
    one and one-half hours later, the jury indicated that it had reached a verdict.
    Court was re-assembled, the verdicts announced and recorded.

The Arguments on Appeal

[96]

The
    appellant says that the net effect of the two exhortations and the indication
    by a juror that he was constrained by personal circumstances to reach a
    decision by the end of Wednesday, May 3, 2017, was a red flag that required
    further response and action by the trial judge. The concern that the trial judge
    had to address and alleviate arose as a result of the cumulative effect of two
    exhortations after twice reported inability to reach a unanimous verdict; the
    note reversing the request for a playback of the appellants testimony; and the
    jurors note reporting on his personal circumstances if deliberations continued
    beyond that day. Combined, these factors may have led the jury to conclude that
    they would have to render a verdict by the end of the day.

[97]

In
    these circumstances, the appellant contends, the trial judge had a duty to make
    it clear to the jury that there was no inherent or arbitrary time limit on
    their deliberations, nor was there any rush for them to reach a verdict. It was
    also incumbent on the trial judge to advise the jury that, in appropriate cases,
    a verdict may be rendered by 11 jurors, rather than by 12 jurors.

[98]

The
    appellant reminds us that the purpose of an exhortation is to impress upon the
    jury the need for its members to listen to and consider the views of their
    fellow jurors and to avoid disagreements based on fixed and flexible
    perceptions of the evidence. Exhortations must avoid language that is coercive.
    Or words that suggest one view of the evidence may be preferable to another. Or
    terms that cause the members of the jury to think that they must agree or reach
    a verdict by some fixed or immutable deadline.

[99]

In
    this case, the trial judge was faced with obvious challenges. The jury had
    twice reported, in emphatic terms, their inability to agree on a unanimous
    verdict. They had asked several questions about the evidence adduced at trial indicative
    of a difficulty in recalling the substance of the evidence or understanding its
    significance for their decision. Added to this was the concern about one of their
    number not being able to participate in deliberations after a particular time.
    At the same time as the juror reported this difficulty, the jury resiled from
    its earlier request for a replay of the appellants testimony. Moreover, the
    jury reached its verdict the morning after the second exhortation, and less
    than two hours after their last question related to the difference between
    sexual interference and sexual assault. The irresistible inference from the
    combined force of these circumstances is that the repeated exhortations had a
    coercive effect on the deliberation process.

[100]

In the end, the
    appellant argues, the failure of the trial judge to properly instruct the jury
    in these circumstances rendered the trial unfair. This resulted in a
    miscarriage of justice.

[101]

The respondent
    disputes the appellants claim of a rush to judgment in the circumstances, as
    well as the assertion that the exhortations were coercive.

[102]

The respondent says
    that the trial judge was at once entitled and required to exhort the jury each
    time they reported an inability to reach a unanimous verdict. That is the very
    purpose of an exhortation. Both trial counsel agreed on this and on the terms
    of the direction, which closely tracked the governing jurisprudence and the
    specimen instructions used in this province and elsewhere.

[103]

According to the
    respondent, the circumstances belie rather than confirm the coercive effect of
    the exhortations. The second exhortation was delivered the night before the
    jury returned its verdict. The jury asked a question seeking an explanation of
    the difference between the offences charged  sexual assault and sexual interference
     and deliberated for a further two hours on the third day before rendering its
    verdict. This confutes rather than supports the claim of coercion.

The Governing Principles

[104]

Several principles
    govern the circumstances in which exhortations should be given to deliberating
    jurors and the content of those exhortations.

[105]

The purpose of an exhortation
    is to encourage jurors to reach a unanimous verdict by reasoning together and
    considering each others views, as well as avoiding disagreements based on
    fixed, inflexible perceptions of the evidence. Exhortations represent an
    attempt to assist in the deliberation process, not to influence the content of
    the jurys discussions:
R. v. R.M.G
., [1996] 3 S.C.R
.
362, at paras. 16-17, citing
R.
    v. Sims
, [1992] 2 S.C.R. 858, at p. 865.

[106]

The contents of an exhortation
    must not impose any form of pressure on deliberating jurors; likewise, it must eschew
    reference to extraneous or irrelevant factors. What is said should not invite
    jurors to compromise honestly held views of the evidence for the sake of
    conformity, or impose any deadline for reaching a verdict:
R.M.G
., at para.
    26. An exhortation should avoid putting the situation to the jury in
    confrontational terms of opposing sides. Rather, it should appeal to individual
    jurors to reason together to achieve a verdict:
R.M.G
., at para. 40.

[107]

Jury exhortation must
    also be free of anything that would have the effects of undermining each jurors
    oath or affirmation to give a true verdict according to the evidence:
R.M.G
.,
    at para. 46. Nor should the instructing judge attempt to influence the result
    by expressing an opinion about the ultimate result of the deliberations:
Sims
,
    at p. 868.

[108]

To determine whether
    an exhortation has crossed the line between what is proper and what amounts to
    coercion, it is necessary to consider the entire sequence of events leading up
    to the direction. For example, the language used in the main charge to advise
    jurors of the right to disagree. The substance of any notes received from the
    jury. The language used by the trial judge in her instructions. And any
    indication by the jury that it was useless to continue deliberations:
R.
    v.  Littlejohn and Tirabasso
(1978), 41 C.C.C. (2d) 161 (Ont. C.A.), at pp.
    168-69; see also
Sims
, at p. 866-67 and
R.M.G.
, at para. 24.

[109]

A final point concerns
    the significance of the time that elapses between the exhortation and verdict.
    Where the time is brief, this may afford a clear indication of the significance
    the jury attached to the exhortation and of its coercive impact on the
    minority:
R.M.G
., paras. 42-43, citing
R. v. Palmer
, [1970] 3
    C.C.C. 402 (B.C. C.A.), at p. 412.

The Principles Applied

[110]

In combination,
    several factors persuade me to give effect to this ground of appeal.

[111]

The number and
    substance of the questions asked by the jury supports a reasonable inference
    that the jurors were clearly troubled about this case and had difficulty
    recalling at least some aspects of the evidence of the two critical witnesses:
    the appellant and the complainant.

[112]

Within hours of the
    conclusion of the charge, the jurors reported that they were unable to agree on
    a unanimous verdict. They received an exhortation and retired for the evening
    without further deliberation.

[113]

The second day of
    deliberations was taken up largely by a replay of the recording of the evidence
    of the complainant. Once again the jury reported an inability to agree on a
    verdict, this time adding a measure of certainty to their stalemate. Once again
    the jury was exhorted. And once again they retired without further
    deliberation.

[114]

The following morning,
    the jury reversed its earlier request to have the recording of the appellants
    testimony replayed. That same morning, a juror reported his inability to
    participate in deliberations should they go into the next day. Within about one
    and one-half hours of the answer to a further question, the jury returned its
    verdict.

[115]

In these
    circumstances, it was incumbent on the trial judge to make it clear to the jury
    that there was no time limit on their deliberations. The trial judge ought to
    have told the jury that the concerns of the juror who had commitments could and
    would be addressed later in the day should they not reach a verdict by then.
    The failure of the trial judge to address these issues with the jury in the
    circumstances of this case constitutes an error that affected the fairness of
    the trial.

Ground #4: Failure to Relate the Evidence to the Issues

[116]

The fourth ground of
    appeal alleges error in the charge to the jury. The requirement said not to
    have been met is one governed by an unbroken line of jurisprudence extending
    back over at least 65 years to its best-known expression.

[117]

To situate the
    complaint in its proper setting, a brief reference to three aspects of what
    occurred at trial will suffice.

The Additional Background

[118]

In general terms, the
    controverted issue at trial was whether the offences alleged ever took place.

The Positions of the Parties at Trial

[119]

The Crown contended,
    as the complainant had testified, that on several occasions over a period of
    years, the appellant fondled her breasts and pinched her nipples. The appellant
    also fondled her vagina. The complainant first reported this conduct to her
    mother who did not notify the authorities. Years later, when in another
    province, the complainant contacted the authorities and later provided a
    statement to police, which formed the basis upon which proceedings were
    instituted.

[120]

The defence position
    was straightforward  no conduct of the nature alleged by the complainant ever
    occurred. The appellant explained that he welcomed the complainant, who was a
    relative, into his home. Her family life was unstable because of conflicts
    between her parents. By his words and entirely innocent conduct, the appellant
    encouraged and supported her. The defence also relied on conflicts between the
    complainants testimony and the evidence of others, including about what the
    complainant reported to them.

The Charge to the Jury

[121]

In her final
    instructions to the jury, which she vetted with counsel in advance of delivery
    and provided a written copy to jurors, the trial judge summarized the essential
    elements of each offence with which the appellant was charged. On each count,
    she emphasized that the real issue for the jury to decide was whether the
    conduct alleged by the complainant ever took place.

[122]

After setting out the
    essential elements of each offence, the trial judge then left those elements to
    the jury as individual questions for them to consider. She explained what Crown
    counsel had to prove beyond a reasonable doubt before jurors could answer any
    question affirmatively and move on to the next question or their verdict, as
    the case may be.

[123]

In her instructions on
    the counts of sexual interference, the trial judge summarized the evidence on
    the essential elements of the complainants age and the requirement of
    touching. As for the essential element of sexual purpose, the trial judge
    simply reminded the jury that the evidence she had reviewed on the touching
    element also applied to that of sexual purpose.

[124]

In her instructions on
    the count of sexual assault, the trial judge incorporated by reference the
    evidence she had summarized on the counts of sexual interference.

[125]

Defence counsel at
    trial did not object to the failure of the trial judge to review the
    significant parts of the evidence adduced and relate those parts to the issues
    the jury was required to decide. No complaint was made at the pre-charge
    conference or after the charge was delivered.

The Arguments on Appeal

[126]

The appellant contends
    that the trial judge erred by failing to relate the salient aspects of the
    evidence to the essential elements of the defence position at trial. The jury
    received no assistance, the appellant says, on how they were to analyse the
    crucial issues relating to the credibility of the principal witnesses and the
    reliability of their evidence.

[127]

The appellant accepts
    that we are to take a functional approach when asked to assess the adequacy of
    final instructions to a jury, testing those instructions against the purpose
    for which they are given. Among their purposes is to ensure that the jury
    appreciates the value and effect of the evidence given on the position the
    defence advances at trial. To achieve that purpose requires the trial judge to
    review the substantial parts of the evidence adduced at trial and relate it to
    the issues raised by the defence to ensure that the jury understands the value
    and effect of that evidence in relation to the position of the defence.

[128]

In this case, the
    appellant continues, this obligation was not met. What occurred here, that is
    to say,

i.

a review
    of the evidence by counsel;

ii.

a summary of the
    positions of counsel; and

iii.

a serial review of
    portions of the evidence

fell short of meeting the trial judges obligation.

[129]

The appellant accepts
    that the essence of the defence position was straightforward  a denial of the
    conduct alleged. But it was also part of the defence position that the
    complainant was not a credible witness and her evidence was unreliable for a
    variety of different reasons grounded in the evidence adduced at trial. The
    nature and circumstances of her disclosure. The incongruity of her mothers
    reaction to the disclosure. The conflicting evidence about her physical
    development. The contradictory evidence about what her mother reported about
    the complainants disclosure. The trial judge erred by failing to fully explain
    the position of the defence and to outline the evidence capable of supporting
    that position.

[130]

The respondent says
    that this ground of appeal should fail. Read as a whole, the charge adequately
    equipped the jury to discharge its responsibility of deciding whether the Crown
    had proven the essential elements of the offences charged beyond a reasonable
    doubt.

[131]

This was a simple
    case. The trial was brief. The witnesses few. The evidence uncomplicated. A
    claim of sexual touching. A denial. Comprehensive closing arguments. Proper
    instructions on reasonable doubt. On the assessment of evidence, including the
    credibility of witnesses and the reliability of testimony. A succinct and
    accurate recapture of the positions advanced by counsel drafted by counsel
    themselves. The absence of objection. No more need be said.

The Governing Principles

[132]

The principles that
    control our decision on this ground of appeal are of venerable lineage and not
    in need of elaborate restatement. A few brief points will suffice.

[133]

First, apart from
    exceptional cases in which it would be needless to do so, a trial judge must
    review the
substantial
parts of the evidence adduced at trial and give
    the jury the position of the defence, so that the jury may appreciate the value
    and effect of that evidence, and how they are to apply it to their findings of
    fact:
Azoulay v. The Queen
, [1952] 2 S.C.R. 495, at pp. 497-98, 503;
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at para. 14.

[134]

Second, there is no
    fixed quantum of evidence that must be reviewed and related to the defence
    position. Each case is different. And so it is that a trial judge is vested
    with considerable latitude to determine how much or little of the evidence is
    to be reviewed in relation to the various elements of the charge, including the
    essential elements of the offence and the position of the defence:
R. v.
    Royz
, 2009 SCC 13, [2009] 1 S.C.R. 423, at para. 3. That more could have been
    said is almost inevitable. But it is not the standard we apply.

[135]

Third, a trial judge
    need only review relevant evidence once and is under no duty to repeat its
    substance in connection with every issue to which the evidence may relate. What
    is essential is that, taking the charge as a whole, the jury is left with a
    sufficient understanding of the facts as they relate to the issues:
Jacquard
,
    para. 14, citing
Cluett v. The Queen
, [1985] 2 S.C.R. 216, at p. 231.

[136]

Fourth, the
    entitlement of the parties is to a proper charge, not a perfect charge:
Jacquard
,
    at para. 2.

[137]

Fifth, lack of
    objection by defence counsel on a ground later advanced as an error before an
    appellate court is not fatal, but it is at once informative and worthy of
    consideration by an appellate court in assessing the impact of an alleged
    deficiency in the charge:
Royz
, at para. 3;
Jacquard
, at para.
    38;
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58; see
    also
R. v. Calnen
, 2019 SCC 6, 53 C.R. (7th) 225, at paras. 38-40.

The Principles Applied

[138]

As I will briefly
    explain, I would also give effect to this ground of appeal.

[139]

At the outset, I
    readily acknowledge the brevity of the trial, the paucity of witnesses and the
    uncomplicated nature of the positions advanced and the legal issues in play.
    But even in such cases, it remains the obligation of the trial judge to review
    the substantial parts of the evidence adduced at trial and give the jury the
    position of the defence, so that the jury may appreciate the value and effect
    of the evidence and how they are to apply the law to their findings of fact.

[140]

In this case, the
    principles in
R. v. W. (D.)
were in play as the trial judge instructed
    the jury. The defence position extended beyond reliance on the unqualified
    denial provided by the appellant in his testimony at trial, which the jury was
    entitled to reject. The defence also challenged the credibility of the
    complainant and the reliability of her assertions. In these circumstances, it
    was incumbent on the trial judge to ensure the jurys understanding of the value
    and effect of evidence that tolled against the complainants credibility and
    the reliability of her account. A serial review of various aspects of the
    evidence adduced at trial was inadequate to this task. After all, rejection of
    the appellants denial, without more, does not equate with proof beyond a
    reasonable doubt of his guilt.

CONCLUSION

[141]

For these reasons, I
    am satisfied that the cumulative effect of the errors made resulted in a
    miscarriage of justice. I would set aside the convictions of sexual
    interference, the conditional stay on the count of sexual assault, and order a
    new trial on all counts in the indictment.

Released: PR JUL 11 2019

David Watt J.A.

I agree. Paul
    Rouleau J.A.

I agree. Grant
    Huscroft J.A.


