COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., MORDEN AND CHARRON JJ.A.
B E T W E E N : )
)
HER MAJESTY THE QUEEN ) Timothy E. Breen
) for the appellant
Respondent )
)
and )
)
C. D. ) Tina Yuen
) for the respondent
Appellant )
)
Heard: March 23 and 24, 2000
On appeal from verdicts rendered at a trial before a jury and
Loftchick J. and from the sentence imposed by Loftchick J.
INTRODUCTION
1The appellant was tried before Loftchick J. and a jury on an
indictment containing six counts which alleged:
That he between the 26th day of May, 1993 and the 30th day
of November, 1995 at the City of Hamilton in the Regional
Municipality of Hamilton-Wentworth and elsewhere in the
Province of Ontario did sexually assault [N.] contrary to
provisions of Section 271(1) of the Criminal Code of Canada.
And further on or about the same time and place did for a
sexual purpose touch [N.], a person under the age of fourteen
years directly with a part of his body, to wit: his hands and
mouth, contrary to the provisions of Section 151 of the Criminal
Code of Canada.
And further between the 29th day of June 1995, and the 30th day
of November, 1995 in the said Region and elsewhere in the
Province of Ontario did sexually assault [T.] contrary to the
provisions of Section 271(1) of the Criminal Code of Canada.
And further on or between the same time and place did being in
a position of trust or authority towards [T.] a young person,
did for a sexual purpose, touch directly the body of [T.], a
young person, with a part of his body to wit: his hands,
mouth and penis contrary to the provisions of Section 153(a)
of the Criminal Code of Canada.
And further between the 1st day of January, 1996 and the 1st
day of May, 1997 in the said Region did sexually assault [S.]
contrary to the provisions of Section 271(1) of the Criminal
Code of Canada.
And further between the 14th day of February,1981 and the
15th day of October, 1981 in the Township of Somerville, in
the Central East Region did indecently assault [W.], a female
person, contrary to Section 149 of the Criminal Code of
Canada.
2The jury returned a verdict of not guilty on counts 1 and 2
and of guilty on counts 3 to 6. The appellant was sentenced to
four years imprisonment on the conviction on count 3, two months
consecutive on the conviction on count 5, and a further six
months consecutive on the conviction on count 6 – with the result
that the total sentence was four years and eight months. The
trial judge, applying the Kienapple principle, stayed the
conviction on count 4.
3The appellant appeals from the four convictions and,
alternatively, from the sentence. The appellant argued six
grounds of appeal from conviction which may, in the order in
which they were advanced before us, generally be described as:
Errors in the charge to the jury relating to
the use to which certain evidence could be put
and to the review of the evidence relating to
the position of the defence;
Errors in the charge relating to “position of
trust” and consent;
Error in the charge on reasonable doubt;
Error in the charge relating to similar fact
evidence;
Error in the reading back to the jury of the
evidence of the complainant, S. (in count 5);
The conduct of the prosecutor.
4Further, the court raised an additional matter regarding the
instruction to the jury on the need for unanimity and received
submissions from counsel on this issue. In my view, there is
validity in each of the grounds. It may be that, looked at
individually, some of them could be answered by the application
of the proviso in s.686(1)(b)(iii) of the Criminal Code.
However, the cumulative effect of them is such that, in my view,
it cannot be said that the conviction would have been inevitable
had the errors not occurred. Accordingly, the result cannot be
saved by the proviso.
5I shall first set forth a general outline of the evidence.
Later in these reasons, when dealing with the grounds of appeal,
I shall refer to further evidence which relates specifically to
the ground of appeal in question.
OUTLINE OF THE EVIDENCE
6I shall first outline the evidence relating to counts 1 to 4
(saying less about the evidence relating to counts 1 and 2
because of the acquittal on those counts) and then outline the
evidence on counts 5 and 6.
7The appellant, who was 33 years old at the time of the
events alleged in counts 1 to 4, married the mother of N., the
complainant in counts 1 and 2, in April of 1994. N. was thirteen
at the time of the events alleged in those counts. Until
November of 1995, when the appellant, N.’s mother, and N. moved
to an apartment in Hamilton, they lived in a house in Caledonia.
8N. testified that one day in the summer of 1995 she was
alone in the house with the appellant. After swimming she sat
down on the couch with the appellant who kissed her on the mouth,
neck and chest and then, after removing her bathing suit, touched
her in various sexual ways and fondled her vagina. He then led
her upstairs where his behaviour toward her continued in the
master bedroom and in N.’s bedroom. N. testified that the
appellant took her into the bathroom, sat her on the counter,
fondled her vagina and masturbated until he ejaculated into the
sink. Later, he took pictures of her in the nude with a Polaroid
camera.
9T., the complainant in counts 3 and 4, was a cousin of N.’s.
Their mothers were sisters. T. lived with her parents in
Caledonia, about a five-minute drive from the appellant’s
residence. She was fourteen at the time of the occurrence of the
events in question.
10T. testified that on June 30, 1995 she went to the
appellant’s residence to spend the long weekend with her cousin,
N. While the appellant and she were alone they watched a
videotape of a movie. The appellant stopped the tape part way
through, suggested that T. and he have sex together, and then led
her upstairs to N.’s room. He undressed her and laid her on N.’s
bed and then touched her vagina and then led her into the
bathroom where she stood in front of the counter while he
masturbated and ejaculated into the sink. T. then got dressed
and the appellant took her into a room where he stored guns. He
showed her a small black handgun and said that if she told anyone
what had happened he would use it. About five minutes later N.
arrived with her mother.
11Beginning in July of 1995 and continuing until November of
that year, when the appellant moved to Hamilton, T. and the
appellant attended weekly piano lessons at a mall in Hamilton.
The routine was for the appellant to pick her up at home and drop
her off after each lesson. T.’s mother recalled that on one
occasion the appellant picked T. up at school because, as he
explained, he had to drop something off at a gun club on the
Stone Church Road and that it would be more convenient to take
her along rather than to return to Caledonia to pick her up.
12T. testified that one day, before attending the piano
lesson, the appellant took her to a gun shop in Hamilton. He
introduced her to the shopkeeper as “Cindy” (which was not her
name) and said that she was doing a school project. He took her
into a room that could be locked from the inside, put a towel on
the floor and told her to take her clothes off. The appellant
then had intercourse with her twice. He then took photographs of
her in the nude with a Polaroid camera. He told her to perform
oral sex on him while he took pictures. She recalled being in
the shop for about one hour.
13T. testified that beginning around October, 1995, the
appellant would take her to a storage unit and have intercourse
with her before or after their piano lesson. She estimated that
she attended the storage unit with the appellant around twenty
times. She said that she never objected to what was happening
because she was afraid of the appellant. She agreed that the
appellant took empty boxes with him each time he visited the
storage unit because, he explained to her, he was intending to
leave his wife and was getting ready for the move.
14In September, 1995, T. was attending Grade 9 in a school in
Caledonia. She testified that on about five occasions, before
the appellant moved in November of 1995, he would come and pick
her up and take her to his home for lunch. T. was always
accompanied by a friend, C. According to T. the appellant would
tell C. that he had to talk to T. about her mother and they would
go upstairs or out to a garden shed and have sex. T.
acknowledged that she never complained to C. or asked her not to
leave her alone with the appellant.
15C. testified that she accompanied T. to the appellant’s
house five or six times. According to C., T. would ask her to
come along, explaining that she had to talk to the appellant
about her mother or to get money or cigarettes. They usually
walked, which would take about fifteen minutes, although on one
occasion the appellant picked them up. After arriving at the
house, the appellant and T. would go somewhere to talk. They
would be gone fifteen to twenty minutes, after which T. and C.
would walk back to school. T. never complained about being
sexually assaulted by the appellant after these visits and C.
observed nothing unusual in her demeanor.
16I turn now to evidence relating to the complaints made by N.
and T. In November of 1995, N. reported inappropriate touching
by the appellant to a guidance counsellor at her school. The
counsellor told her that she had to report the matter to the
Children’s Aid Society. N. became upset, indicating that she
would lie in order to avoid any consequences of a formal report
of abuse.
17In January, 1996, as a result of the disclosure to the
counsellor, N. attended at a police station with her mother and
the appellant. She was interviewed by a detective of the
Hamilton-Wentworth police force. She told the detective that
after swimming at her mother’s residence, she went into the
living room and sat on the appellant’s lap and that he
inadvertently touched her between the legs. The day after the
interview with the detective she and her mother met with a
private investigator to whom she provided a written statement in
which she described the contact as inadvertent touching.
18N., T., and their mothers, all testified that N.’s original
complaint of sexual abuse had not been discussed within the
family before June of 1997.
19T.’s mother testified that she was concerned because T.
seemed to be moody before piano lessons and that she had been
nervous, apparently about starting high school, and had been
dressing in oversized clothes. Following the last piano lesson
she asked T. if the appellant had been molesting her. T. denied
any inappropriate contact.
20T.’s mother testified that T. had never complained that she
did not want the appellant to drive her to the piano lessons.
21T.’s friend, C., testified that, near the end of September
1995, T. told her that she had been raped by the appellant. C.
advised T. to say something and not to see the appellant again.
To C.’s knowledge, T. did not return to the appellant’s house
during lunch again.
22T. could not recall when she complained to C., but claimed
that she asked C. not to tell anyone. On June 1, 1997 C. was
present during an argument between T. and her boyfriend, when T.
told him about the abuse. Later that day, T. told his mother
who, in turn, informed T.’s mother. Halton and Norfolk police
were contacted and Officer Mowett attended T.’s home and spoke to T.
23Officer Mowett arrived at T.’s residence around 10:05 p.m.
on June 1, 1997 and took a notebook statement. T. alleged that
the abuse occurred from August 1995 to December 1995. She
claimed to have been assaulted “about twenty times” in a Hamilton
storage unit, twice while at the appellant’s home during the
school lunch break, and once at a gun shop, although the note
suggested that no sexual activity occurred at the gun shop.
Officer Mowett made no notation of any sexual activity at the
appellant’s residence in June of 1995.
24N.’s mother testified that she attended at T.’s residence,
with her parents on the evening of June 1. The next morning she
drove to N.’s father’s home, where N. was staying, and asked her
if something had ever happened with the appellant. N. responded
affirmatively. Both N.’s mother and N. denied that N.’s mother
had initially told N. that T. had made allegations of abuse.
However, in a statement to the police later that day, N. twice
stated that her mother said that the appellant had been molesting
T. and wanted to know if it had happened to her. After N. told
her mother that she had been molested, her mother called T.’s
mother and advised her that N. had been molested too.
25After completing a statement to Detective Forgan, N. and her
mother went to T.’s home where they stayed the night. That
evening N. and T. spoke to T.’s mother. At about 9:30 p.m. T.’s
mother called Detective Forgan and said that the girls “need to
disclose more”. Detective Forgan then spoke to N. who stated
that she had been talking to T. and wanted to tell Constable
Forgan that the appellant had taken photographs of her. Forgan
then made arrangements for both N. and T. to attend the station
the following morning at 10:00 a.m.
26Following this conversation N. and T. discussed their
experiences and wrote out what the other was saying. In T.’s
statement written by N. she described the alleged assault on June
30, 1995. This statement included an allegation of oral sex by
the appellant on T. N.’s statement, written by T., included
allegations of mutual oral sex. N. acknowledged in cross-
examination that she had made no mention of oral sex at the
preliminary inquiry or in her evidence in chief. N. claimed that
she had forgotten these details.
27When confronted with her statement, T. denied any sexual
activity in the master bedroom or that there had been any oral
sex on June 30, 1995. She claimed that the statement was
inaccurate although she had read it over at the time to ensure
that it was correct.
28T. further acknowledged that she told Detective Forgan on
June 3, 1997 that she first had intercourse with the appellant in
a storage shed. She claimed that she was mistaken and that
intercourse had first occurred at the gun shop. She explained
that she was on nerve pills at the time of the statement.
29The evidence relating to count 5 (sexual assault of S.) may
be stated briefly. S. had been a friend of N. (the complainant
in counts 1 and 2) since kindergarten. She had met the appellant
when she was 11 or 12 when visiting N. at her home.
30S. testified that in the spring or summer of 1996, when she
was visiting N., she, N. and the appellant went to a variety
store. She testified that the appellant “grabbed” her “behind”
when getting out of the car, when going into the store, once
while in the store, and on getting back into the car. She gave
evidence of a further sexual advance later in the day in N.’s
bedroom when the appellant put his finger into the top of her
jeans and underwear and pulled her towards him.
31The complainant in count 6, W., testified that she spent
part of the summer in 1981 at a family cottage. The appellant
visited the cottage for several weeks. During that time their
relationship developed to a point where she considered the
appellant to be her boyfriend. On occasion they went for a canoe
ride and the appellant fondled her breasts, removed her bikini
bottom, and touched her vagina with his hands and penis. She
could not recall if they had intercourse.
32At that time she was 13 and the appellant was 19. W.
testified that she had been contacted by the appellant’s sister
who had told her that the appellant had been charged with sexual
offences. There was evidence of bad feeling between the
appellant and his sister.
33The appellant in his evidence acknowledged inadvertent
contact with N., on one occasion in the summer of 1995, when she
sat on him wearing a wet bathing suit. He denied any sexual
contact on any other occasion.
34He then dealt in his evidence with all of the Crown evidence
relating to counts 3 to 6. He admitted being in the presence of
the complainants but denied any sexual contact with them.
35As far as the storage shed was concerned, he said that he
had rented the unit in anticipation of leaving his marriage, with
the intention of using it to store furniture and personal
property. On the occasions that he stopped at the unit with T.
he dropped off boxes. There was evidence that the storage shed
was rented for no more than 9 weeks.
36He testified that T. had visited him at home on the school
lunch break together with C. T. had come to discuss problems she
had with her mother.
THE GROUNDS OF APPEAL
1. Errors in the charge to the jury relating to the use to
which certain evidence could be put and in the review
of the evidence relating to the position of the defence
37In this ground of appeal, the appellant submits that the
trial judge failed to adequately review and explain the use and
effect of evidence in support of the defence position. The basic
position of the defence was that the complaints were fabricated
and that there were significant prior inconsistent statements
made by Crown witnesses which undermined their credibility.
(Having regard to the acquittal of the appellant on counts 1 and
2 the only relevant statements are those of T.). The submitted
prior inconsistent statements related to both the question of
whether there was collaboration among the witnesses as well as to
the evidence given directly against the appellant. The appellant
also submits that the trial judge erred in failing to caution the
jury on acting on T.’s evidence, given the evidence of
collaboration and the significant prior inconsistent statements.
In addition, the appellant submits that no instruction was given
with respect to the prior consistent statements of T.
38The prior inconsistent statements included the following:
In the fall of 1995, after the last piano lesson,
T., in response to a question from her mother
whether the appellant had been molesting her,
denied any inappropriate contact.
In T.’s statement to Officer Mowett on June 1,
1997 she made no mention of the sexual assaults
which took place at the appellant’s house on June
30, 1995. She stated that the time-frame for the
assaults was August to December 1995 as opposed,
in her evidence, June to November 1995. She also
said that there were two incidents at the
appellant’s residence during lunch, as opposed to
five incidents testified to at trial.
In her handwritten statement on June 2, 1997, T.
said that there was mutual oral sex in the master
bedroom at the appellant’s house on June 30, 1995.
At the trial she testified that this portion of
the statement was incorrect. Oral sex occurred
only at the gun shop.
In her statement to Detective Forgan on June 3,
1995, T. said that the first incident of
intercourse occurred in the storage shed. At the
trial, she said that it was at the gun shop.
T. said to her boyfriend that the appellant had
held a gun in her back, tied her hands with a rope,
and grabbed her neck and also said that one of the
assaults had taken place at her house. At trial
she said that these things did not occur and denied
having said them to her boyfriend.
At the preliminary inquiry in May 1998,T. testified
that the appellant took her to the storage shed 30
times. At the trial she said it was 20 times.
There was evidence that the rental of the storage
shed was for a period that would have prevented resort
to it more than nine times.
39In his charge to the jury, the trial judge reviewed in some
detail evidence given by the complainant Crown witnesses in
chief. He did the same for the appellant’s evidence. He did not
mention the evidence which related to the matter of witnesses
collaborating (particularly the witnesses N., T,. T.’s friend C
and N.’s friend S.) in the formulating of their complaints and in
the giving of their evidence. Nor did he refer to the evidence
of the prior inconsistent statements.
40Near the beginning of the charge, the trial judge gave the
following general instruction on assessing credibility:
In determining whether to believe a witness you
should consider such factors as: his or her
ability and opportunity to observe; his or her
appearance and manner when testifying before you
in the witness box; his or her power of
recollection; any interest, bias or prejudice he
or she may have; his or her sincerity while
testifying; and any inconsistencies in his or her
testimony, both in the testimony given here at trial
and the inconsistencies between that testimony and
previous testimony in other courts, or in previous
statements given. Above all, consider the
reasonableness of his or her testimony when
considered in light of all the other evidence. That
is, ask yourself: Is it reasonable? Does this
evidence have the ring of truth?
41It may be seen that in the middle of this passage there is
an instruction on the bearing of inconsistencies in previous
testimony or statements on the believability of a witness. This
instruction was not related at any place in the charge to
anything in the case before the jury. At the end of his review
of the evidence, the trial judge said:
I should point out to you that it is the overall
position of the accused, as stated to you by his
counsel Ms. Loft, that these charges against him
are the result of collusion between the
complainants who have stretched the truth in order
to make the accused look guilty. That is, taking
events that have actually occurred and expanded upon
them to the extent they have attempted to make the
accused look guilty of these charges. If you accept
this argument or if the arguments made and the facts
relied on by the accused create doubt in your mind
as to whether any or all of the assaults alleged
actually occurred, you should acquit the accused on
those counts in connection with where such doubt
exists.
42Defence counsel, in the course of her address, had referred
to major inconsistencies between some of the Crown evidence at
trial and the prior statements of witnesses.
43A trial judge has a duty to instruct the jury on the
possible uses of evidence of prior inconsistent statements (the
cases are set forth in Mc Williams, Canadian Criminal Evidence,
3rd ed. at pp. 37-16 to 37-24) and a general duty to instruct the
jury in such a way that they will have a sufficient understanding
of the evidence as it relates to the issues they have to
consider. See R. v. MacKinnon (1999), 1999 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont.
C.A.) and the authorities cited in it.
44In this case, while the trial judge in part of his comments
on the believability of witnesses, did include the factor of
inconsistencies in previous statements given, as indicated, he
did not tell the jury that there was evidence of previous
inconsistent statements of Crown witnesses and that the defence
relied upon them in its attack on the Crown’s case.
45The respondent, in answer to this ground of appeal, relies
upon the passage quoted above in which the trial judge said that:
“It is the overall position of the accused, as stated to you by
his counsel Ms. Loft, that these charges are against him are the
result of collusion between the complainants…”. The respondent
submits that in this passage the trial judge “incorporated by
reference” defence counsel’s submission into his instructions.
46A trial judge may, in part, fulfil his or her duty by
referring to a portion of a counsel’s address (see R. v.
MacKinnon, supra, at p. 556). I do not think that this was
properly done in this case. The trial judge did no more than
tell the jury what they already knew – the position of the
defence in very general terms. The trial judge had earlier told
the jury that it was their “duty to be guided by my explanation
of the law”. To the extent that there was any law contained in
defence counsel’s address respecting prior inconsistent
statements (as far as I could see there was none) it is difficult
to interpret the trial judge’s reference to the position of the
accused as stating to the jury that he, the sole authority on
matters of law, was telling the jury to accept what defence
counsel said as a statement of the applicable law.
47I might mention that the inconsistent statement of T. to
Constable Howett on June 1, 1997, in which, according to
Constable Howett, T. made no mention of the alleged assaults on
June 30, 1995, was of particular importance to the defence. In
her evidence T. said that she did not remember telling Constable
Howett about these assaults but that she “was almost positive
that I told him.” If the jury was not prepared to find that the
incidents of June 30, 1995 took place, they may have thought that
an important basis for finding that the following events took
place was missing. It will be recalled that T. testified that
she submitted to the appellant’s advances because of her fear of
the application of force. The only evidence of a threat of force
by the appellant was T.’s evidence of what happened on June 30,
- The trial judge highlighted this evidence at the end of
his review of T’s evidence: “She would not have consented to sex
on the subsequent occasions if the accused had not threatened her
with a gun on that initial incident on June 30th.”
48Further, and perhaps of more importance to the defence, was
the fact that, if indeed T. had not disclosed the alleged
incident of June 30 to Constable Howett, the evidence was such
that her first disclosure of this incident would have been made
only after N. and T. got together and wrote each other’s
statements. The striking similarity between N.’s allegations and
the incident of June 30 involving T. was relied upon by the
defence as evidence of collaboration between the two girls.
49There are two other features which, the appellant submits,
should be taken into account in determining the adequacy of the
instruction on prior inconsistent statements. The first is that
the trial judge had instructed the jury that they were not to
take the facts stated in counsel’s questions as evidence unless
the witness agreed that the question was factually correct. The
prior inconsistent statements were put to the witnesses in the
form of questions, and, the appellant submits, there was the risk
that the jury would not use the previous statement at all unless
the witness had agreed that it was correct. I think that there
was a risk here that could have been avoided by a complete
statement of the law relating to the evidentiary effect of prior
inconsistent statements – using examples from the case before the
jury.
50Second, the appellant submits that reliance on the trial
judge’s reference to defence counsel’s address may have been
weakened by Crown counsel’s aspersion of her, which is dealt with
later in the reasons when I consider the sixth ground of appeal.
This aspersion could hardly have left her in a light where she
appeared to be a neutral source of legal instruction to the jury.
51I need not say much about the submission that the trial
judge, given the evidence of collaboration and prior inconsistent
statements, did not caution the jury on the danger of acting on
the evidence of T. The giving of a caution is, generally, a
matter of discretion (R. v. Brooks, 2000 SCC 11, [2000] S.C.J. No. 12) and it
is difficult to accept that the discretion was wrongly exercised
when the giving of it was not requested by either counsel, as was
the case in this proceeding. It has been held, however, that
there may be less need for giving a caution in a case where the
trial judge has carefully reviewed for the jury the major parts
of the evidence which bear on the credibility of challenged Crown
witnesses: R. v. Kent (1986), 1986 4745 (MB CA), 27 C.C.C. (3d) 405 (Man. C.A.) at
426-427; R v. Boss (1988), 1988 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.) at 531-
325; and R. v. Sanchez-Flores (1992) 1992 12772 (ON CA), 75 C.C.C. (3d) 23 (Ont.
C.A.) at 39-40. That did not happen here.
52The only evidence of prior statements which the trial judge
referred to in his charge to the jury was that of T. to her girl
friend C. This was a prior consistent statement. The trial
judge did not refer to T.’s prior consistent statement to her boy
friend. It is not objected that the evidence of these statements
was inadmissible. They formed part of the narrative. However, a
limiting instruction should have been given with respect to their
use. The jury should have been instructed that the previous
statements could not be looked to as evidence of the truth of
their contents. R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont.
C.A.) at 476.
2. Error in the charge relating to consent and “position
of trust”
53This ground of appeal relates to the convictions on counts 3
and 4. The meaning of “position of trust” is relevant to count
3, which alleges sexual assault, in that, even if T. consented to
the sexual contact this would not be a defence if “the accused
induces the complaint to engage in the activity by abusing a
position of trust, power or authority:” Criminal Code, s.
273.1(2)(c). The meaning of “position of trust” is also relevant
to count 4 which alleges an offence against s. 153(1)(a) of the
Code. This provision reads:
153 (1) Every person who is in a
position of trust or authority towards a
young person or is a person with whom the
young person is in a relationship of
dependency and who
(a) for a sexual purpose, touches,
directly or indirectly, with a part of the
body or with an object, any part of the body
of the young person, … is guilty of an
indictable offence and liable to
imprisonment for a term not exceeding five
years of is guilty of an offence punishable
on summary conviction. [Emphasis added.]
(2) In this section, “young person” means
a person fourteen years of age or more but
under the age of eighteen years.
54I mention now that the submitted errors relating to count 3
are that the trial judge did not correctly instruct the jury on
the meaning of “position of trust” and that he did not instruct
the jury that for s. 273.1(2)(c) to be applicable they had to
find that the appellant “abused” his position of trust. The
submitted error respecting count 4 is, again, the trial judge did
not correctly define “position of trust” for the jury.
55The error relating to count 3 occurred in the trial judge’s
re-charge to the jury in response to a question from them. To
have a proper understanding of the competing submissions on these
grounds of appeal it is necessary to begin with an understanding
of the positions of the parties at trial and, then, a
consideration of other relevant parts of the main charge to the
jury.
56The positions presented by the parties at the end of the
evidence were straight-forward. T’s evidence was that she
submitted to the sexual assaults, or touching, as a result of the
appellant’s threats of the application of force to her. The
appellant’s evidence was that, while he may have been with T. on
the occasions described in her evidence, he did not assault her
or touch her in any sexual way. In short, the events which she
described never happened.
57With respect to the sexual assault charge the trial judge
told the jury that:
As a matter of law an assault is an intentional
unwanted touching of another person. A sexual
assault is such a touching that is an unwanted
touching of a sexual nature. Whether a touching
is of a sexual nature can usually be inferred
from the manner in which the touching occurred
or the area of the body that is being touched,
that is the surrounding circumstances of the
touching.
58This was in relation to count 1 (the sexual assault against
N.) but when the trial judge dealt with count 3, sexual assault
against T., he said:
As I have indicated to you a sexual assault is an
intentional unwanted touching of a sexual nature.
59He particularized this as follows:
If you are satisfied beyond a reasonable doubt that
any of the sexual encounters as described by T.
occurred, that they took place against her will as
she described to you, you may find the accused guilty
on count three, that is the charge of sexual assault
in the indictment. The occurrence of any one of the
sex acts described by T. involving her being touched
by the accused against her will would be sufficient
for a finding of guilt. That is, you need not find
that all of those events occurred. A finding of being
satisfied beyond a reasonable doubt that any one of
those activities occurred as she described is
sufficient for a finding of guilt.
60With respect to count 4 (sexual exploitation) he instructed
the jury as follows:
The law makes it an offence for a person in a
position of trust or authority toward a young
person to touch that young person for a
sexual purpose. For the purposes of defining
this offence the term “young person” has been
defined as a person 14 years of age or more
but under the age of 18 years.
The elements of this offence, which the
Crown must prove, is that there was an
intentional touching by the accused of T. for
a sexual purpose; that T. at the time was a
person 14 years of age or over but under 18
years; and that at the time he did the
touching the accused was a person in a
position of authority or position of trust
with respect to T.
….
In order for you to find the accused
guilty on count four of the indictment, you
must be satisfied that the accused touched T.
for a sexual purpose with his hands, mouth or
penis. She has given evidence to that
effect, so it becomes a matter of whether you
are satisfied beyond a reasonable doubt that
those events occurred. You must also find
that she was a young person at the time of
the touching; that is, a person 14 years of
age or over and under the age of 18 years.
You may recall that her evidence was that she
was 14 years of age in 1995 when she said
these incidents began, so if you are
satisfied that the encounters occurred as
described by her you should have no
difficulty in finding that she was a young
person within the meaning of that section of
the Criminal Code at the time.
You must also be satisfied beyond a
reasonable doubt in order to convict on count
four that the accused at the time of the
touching was a person in authority or in a
position of trust over T. If you are
satisfied that the accused was the adult
responsible for T. as her step-uncle, for
instance at the time she alleges the events
of June 30th 1995 occurred, that is a person
of such authority as to make her feel obliged
that she was in effect bound to do what he
asked, or if you are satisfied beyond a
reasonable doubt that T.’s parents entrusted
the accused to see that she got safely to and
from piano lessons with respect to those
other occurrences which she described, you
may conclude that the accused was a person in
authority over her or in a position of trust
over her within the meaning of the words used
in count four of the indictment. [Emphasis
added.]
61The trial judge put the position of the appellant to the
jury as follows:
The answer of [C.D.] to the allegations against
him in this matter, in a nut-shell, are that
the incident with respect to N. was an accidental
touching that lasted but a few seconds. And with
respect to the other assaults his position is
that they just didn’t happen.
62I shall not comment on these passages until I have set forth
what was said in the re-charge.
63At the end of the charge there was one objection only, that
of the appellant’s counsel (who is not his counsel in this
appeal) and it related to the charge on similar fact evidence. I
shall refer to it later in these reasons. The trial judge
decided that no further instructions were required with respect
to it.
64Some three and one half hours later the jury asked three
questions in writing. At this point in my reasons only the
second and third questions are relevant. They were:
2: Repeat the charge to jury about consent
in regard to age of the adult and those
under 14 and 14 to 18.
3: Review definition of position of trust.
65The trial judge discussed these questions with counsel. It
is reasonable to suppose that the second question related to the
sixth count in the indictment, the charge of indecent assault on
W., because this was the only count with respect to which the
judge had mentioned “consent” to the jury and to the fifth count
with respect to which the judge had made reference to the ages of
14 to 18. He had said:
It was W.’s evidence, and there is no evidence to
the contrary, that during the summer of 1981 she
was 13 years of age. I tell you as a matter of
law that a person under the age of 14 years cannot
consent to sexual activity with a person over 18,
and you recall the evidence was at that time that
[C.D] was 19 years of age. So that if you accept
that she was 13 years of age at the time and he
was 19, consent cannot be an issue.
66Regardless of the possible reason for the question, the
judge, in his consideration of it with counsel, saw the
implications that it had for the sexual assault charge in count
67N. in count 1 was 13 at the time covered by the count in the
indictment and whether or not she consented was not relevant.
Consequently, the instruction that the touching had to be
“unwanted” before the jury could find the appellant guilty on
count 1 was incorrect. However, this error favoured the
appellant and no issue is taken on this appeal on this point. T.,
however, was 14 and, accordingly, whether or not she consented
was relevant but so, also, was whether or not any consent was
obtained by the abuse of a position of trust, power or authority
(Criminal Code, s. 273.1(2)(c)).
68The trial judge then re-charged the jury as follows with
respect to both questions 2 and 3.
For the purposes of various sections of the
Criminal Code, including the section that
relates to sexual assault, “consent” means
the voluntary agreement of the complainant to
engage in the sexual activity in question. No
consent is obtained for the purposes of
various sections, including the section
dealing with sexual assault, where the
accused induces the complainant to engage in
the activity by abusing a position of trust,
power or authority.
By way of explanation, the law says that
an adult, for the purposes of the sexual
assault sections, is someone over the age of
14 years. [He probably intended to say “14
years of age and over.”] That is, someone
over that age can consent to engage in sexual
activity subject to certain limitations,
which I will deal with in a minute. The
consent, however, must be freely given and
voluntary. If a party consents as a result
of threats or fear of injury to themselves or
others, that is not a voluntary consent. If
the consent is obtained as a result of the
abuse of a position of trust or authority, it
is not a voluntary consent.
….
So far as a position of trust is
concerned, a position of trust should be
interpreted as having a meaning of confidence
or reliance. That is, you may find, it is
open to you to find, that the accused was in
a position of authority over T. For
instance, if you find that T.’s parents
agreed to the accused driving her to piano
lessons and being with her on the assumption
that she was safe with him and they could
rely on him to act properly toward her. If
you find that that is the situation, it is
open to you to find that the accused is in a
position of trust. Other examples of a
position of trust might be such things as a
boy scout leader taking a group of scouts on
a weekend excursion. The parents of those
children or young people are relying on him
to act properly toward them. Or a hockey
coach or a Sunday School teacher taking a
group out of town or away from their parents
for a period of time. The assumption being
“My kids are safe with him,” kind of thing.
If you find that that kind of situation
existed, it is open to you to find that the
accused was in a position of trust. An
individual may at the same time be in a
position of authority and a position of
trust. And again I come back to the example
of a school teacher, that person so far as
the child is concerned is in a position of
authority because in most instances a child
would feel compelled to do what he is told by
the teacher. So far as the parents of that
child is concerned, the teacher may very well
be in a position of trust because they rely
on such a person to act properly toward their
children and assume that their children are
safe with him and that they need not worry
about their well-being. [Emphasis added.]
In considering whether the accused in
this case is in a position of authority or in
a position of trust, I suggest that you look
at the age difference between the accused and
the complainant at the time, the evolution of
the relationship between them, and the status
of the accused in relation to the young
person, that is the complainant, as relevant
considerations as to whether he is in a
position of authority. So far as the counts
relating to T. are concerned, it is open to
you to find, for instance, that she may very
well have consented to the sexual activity,
in which case normally that would not be a
sexual assault, but if you find that she
consented because the accused was in a
position of authority toward her or in a
position of trust toward her, then that
consent is really no consent.
69The trial judge then returned to the parties’ basic
positions “that the complainants say these events occurred, and
the accused says they just didn’t happen”. He then said consent
was not an issue with respect to N. (count 1) and W. (count 6).
70I shall now deal with the appellant’s three submissions
respecting errors in the foregoing instructions.
71First, the appellant submits that there was no evidential
basis for leaving the issue of consent with the jury because it
was a straight case of the jury either finding that the assaults
took place as she described them (sexual assaults where T.’s
“consent” resulted from fear of application of force) or that
they did not happen at all, in accordance with his evidence. It
follows from this, the appellant submits, that there was no basis
for leaving the position of trust issue.
72I think that the judge was right in leaving the issue of
consent with the jury. It was open to the jury to accept that
the sexual conduct took place as alleged by T. but not to accept
that the submission to it was extracted by fear of the
application of force. A basis for concluding that the sexual
contact was “consensual” could be found in the evidence: (1)
that T. never said to her mother that she did not want to go to
the piano lessons with the appellant; (2) that, according to the
piano teacher, T. always appeared to be happy taking the lessons,
the two of them played around during the lessons, that they were
“close” and that it appeared that T. had a “crush” on the
appellant; and, (3) T.’s friend C. testified that T. never
complained about being sexually assaulted by the appellant after
the visits to his house and that C. observed nothing unusual in
her behaviour.
73This is not a case like R. v. Jensen (1996), 106 C.C.C. (3d)
p. 430 (Ont. C.A.), relied upon by the appellant, where the only
probative evidence on the complainant’s state of mind was that of
the complainant herself. Further, defence counsel at trial, had
no objection to the re-charge on this issue even though it did
not reflect the position she was taking before the jury.
74Second, the appellant submits that the instruction on the
meaning of position of trust, both in the initial charge in
relation to count 4 (sexual exploitation) and in the re-charge,
where it could be applied to both the sexual assault and the s.
153 charge, was wrong.
75The appellant submits that it was wrong for the trial judge
to instruct the jury that the jury could find that there was a
position of authority or trust if they found that T.’s parents
“entrusted the accused to see that she got safely to and from
piano lessons with respect to those occurrences which she
described” (initial charge to the jury) – or if they found “that
T.’ parents agreed to the accused driving her to piano lessons
and being with her on the assumption that she was safe with him
and that they could rely on him to act properly toward her” (the
re-charge).
76I agree with the appellant’s submission that these passages
do not accurately state the law on the meaning of “position of
trust”. Specifically, it is wrong to assess the position of
trust issue simply from the perspective of the complainant’s
parents (R. v. L. (D.B.) (1995), 1995 2632 (ON CA), 101 C.C.C. (3d) 406 (Ont. C.A.)
at pp. 409-410) although this is a relevant and, I think, an
important factor to take into account.
77The foregoing does not exhaust what the trial judge told the
jury on the subject of the position of trust. The charge
contains passages that are based squarely on the reasons of
LaForest J. for the majority of the Supreme Court of Canada in R.
v. Audet (1996), 1996 198 (SCC), 106 C.C.C. (3d) 481 at pp. 498-504. I refer, in
particular, to the passages in the re-charge, which was made
applicable to both counts 3 and 4, which instructed the jury that
a position of trust should be interpreted as having “a meaning of
confidence and reliance” (Audet at pp. 499-500) and that:
In considering whether the accused in this case is
in a position of authority or in a position of trust
I suggest that you look at the age difference between
the accused and the complainant at the time, the
evolution of the relationship between them, and the
status of the accused in relation to the young person,
that is the complainant, is relevant considerations
as to whether or not he is in a position of authority.
(Audet at p. 500).
78The charge is not as clear as it could be, because,
notwithstanding the correct statements based on Audet, the trial
judge told the jury that they could find a position of trust
solely on finding that the parents agreed to the appellant
driving her to the piano lessons, i.e. that they could find a
position of trust simply on the basis of the parent’s
perspective.
79I fully appreciate that on the evidence it was open to the
jury to find a position of trust and will not pursue whether the
error prejudiced the appellant.
80The appellant’s third and final submission is that the trial
judge erred at the end of his re-charge in instructing the jury
that a consent on her part to the sexual activity would be no
consent “if you find that she consented because the accused was
in a position of authority toward her or in a position of trust
toward her”. The error is that this does not refer to the
complainant’s engaging in sexual activity by the appellant’s
abusing a position of trust or authority, as required by s.
273.1(2)(c) of the Criminal Code. I note that the requirements
of abuse of a position of trust or authority and, for that
matter, non-consent, while relevant to the sexual assault
charges, are not relevant to the sexual exploitation offence
(count 4).
81The trial judge had earlier in the re-charge to the jury, in
a passage set out above, instructed them using the term “abuse of
the position of trust”. Once again, I am not required to
determine the net effect of the charge on this question.
Clearly, it was open to a properly instructed jury to find the
requisite abuse.
3. Error in the charge on reasonable doubt
82The main submission of the appellant under this heading is
that the re-charge to the jury contained an error on the meaning
of reasonable doubt. The following is the sequence of the
treatment of proof beyond a reasonable doubt in the instructions
to the jury.
83The initial charge to the jury was fully in accord with the
judgment of the Supreme Court of Canada in R. v. Lifchus (1997),
1997 319 (SCC), 118 C.C.C. (3d) 1. After deliberating for about three and one
half hours the jury returned with three questions. I have dealt
with the second and third questions in considering the ground of
appeal relating to consent and position of trust. The question
relating to reasonable doubt was:
Clarification (1) possible cause, (2) probable cause
and how they can affect decisions.
84The trial judge said to the jury: “I am not clear as to what
the meaning of that question is, unless it is in relation to my
charge to you concerning reasonable doubt.” The foreman replied:
“Yes sir, that is it entirely.”
85The trial judge then gave an accurate instruction to the
jury on reasonable doubt repeating, substantially, what he had
said in his initial charge. He then added the following:
Proof beyond a reasonable doubt is achieved –
this I didn’t read you. You may take it as
something of an additional charge. Proof
beyond a reasonable doubt is achieved when you
feel sure of the guilt of the accused, when
the totality of the evidence that you find
credible convinces you of that guilt. One
phrase that has often been used in connection
with reasonable doubt is that if you find that
the evidence convinces the mind and satisfies
the conscience, then you may take it that you
are sure within the meaning of the concept of
reasonable doubt.
I don’t know that I can add anything
further to that. I suppose if you still have
a question with respect to that specifically
after you return and resume your
deliberations, I can try to clarify somewhat
more. I know that we are drawing a fine line
between being certain and being sure, but
that is effectively what the law says the
distinction is. The Crown isn’t required to
prove guilt to the degree of certainty but
only to the degree of proof beyond a
reasonable doubt, and there is a distinction.
[Emphasis added.]
86The whole problem lies in the last two final sentences. In
R. v. Lifchus, supra, at page 12, Cory J. said for the court:
In the United Kingdom juries are instructed that they
may convict if they are “sure” or “certain” of the
accused’s guilt. Yet, in my view that instruction
standing alone is both insufficient and potentially
misleading. Being “certain” is a conclusion which a
juror may reach but, it does not indicate the route
the juror should take in order to arrive at the
conclusion.
It is only after proper instructions have been given
as to the meaning of the expression “beyond a
reasonable doubt” that a jury may be advised that
they can convict if they are “certain” or “sure” that
the accused is guilty.
87The problem with the re-charge is that in the last two
sentences the trial judge told the jury, directly contrary to
Lifchus, that they did not have to be certain to be satisfied
beyond a reasonable doubt of the guilt of the accused. This was
undoubtedly a slip on the part of the judge. What he probably
intended was to draw a distinction between absolute certainty
(which Lifchus at p.12 says is “an unrealistically high
standard”) and proof beyond a reasonable doubt.
88An argument can be made that, having regard to the jury
having been told twice before the end of the recharge that proof
to an absolute certainty was not required, they would have
understood the distinction in the final two sentences as being
between absolute certainty and proof beyond a reasonable doubt.
Accepting this argument involves accepting that the jury would
have known that the final two sentences in the re-charge, which
were in a part of the charge described as “something of an
additional charge”, were erroneous. This is a tall order. I
think the fairest conclusion to draw is that at least some of the
jurors may have been confused at the end of the re-charge in
their understanding of the most fundamental principle governing
criminal trials. The weakness of the position is compounded by
the fact that the confusion occurred as part of a recharge in
response to a question from the jury and it was the last
instruction the jury heard on the meaning of reasonable doubt.
See R. v. Brydon (1995), 1995 48 (SCC), 101 C.C.C. (3d) 481 (S.C.C.) at 489.
4. Error in the charge relating to similar fact evidence
89The trial judge left the question of collaboration between
N. and T. with the jury in the following way:
One of the issues in this trial is whether the
complainants should be believed. In these
circumstances, if there is no evidence of
collaboration between [N.] and [T.], the stories
which they tell are so similar, you may find that
the testimony of one of them may support the
credibility of the other insofar as the events
alleged to have occurred at the accused’s residence
in Caledonia are concerned.
90With respect this was not a clear instruction to the jury on
their duty with respect to the use of similar fact evidence.
There was substantial evidence of collaboration between N. and
T., particularly in their jointly writing down each other’s
statements on June 2, 1997. It was important for the jury to be
instructed that they could not take N.’s evidence into account in
assessing T.’s credibility with respect to the alleged June 30,
1995 assaults unless they were satisfied that the evidence of N.
and T. was not the result of collaboration between them (R. v. B.
(L.); R. v. G. (M.A. ) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.) at
497).
91It could be said that the charge was overly favourable to
the defence because, interpreted one way, it seems to say that
the similar fact evidence could be used only “if there is no
evidence of collaboration.” Since it was obvious that there was
evidence of collaboration, I would think that the jury would have
been confused on how to approach this issue. I note that defence
counsel objected to the charge on this ground. Her unsuccessful
objection was that there should be a short statement to the
effect “. . . . something along the lines of the risk of
collusion must be negatived by a finding by the jury before they
can consider that there was similar fact. ..”
92Before leaving this ground of appeal, I refer to the
acquittal of the appellant on the two counts relating to N. This
may raise the question of the unlikelihood that the jury used
N.’s evidence when considering the charges relating to T.
5. Error in the reading back to the jury of the evidence
of the complainant S. (count 5)
93During their deliberations the jury made the following
request:
With respect to [S.] please read the events from
getting out of the vehicle to return to the vehicle
only. S. comments required.
94It will be recalled that S. had testified that the appellant
had “grabbed” her on the “behind” four times during the period
covered by this question. She had testified with respect to an
assault later on the same day by the appellant but this was not
within the purview of the question.
95The trial judge read from a portion of S.’s evidence in
chief only. The appellant submits that the trial judge should
also have read from her evidence given on cross-examination with
respect to matters covered by the evidence in chief.
96I think that the trial judge erred in not having read to the
jury the cross-examination in question. R. v. Olbey (1979), 50
C.C.C. (2d) 257 (S.C.C.) at 272-275. The real issue is whether
the error occasioned any prejudice to the appellant. The
respondent submits that it did not, since the cross-examination
did not significantly qualify the evidence in chief that was
read. The appellant submits that the “logic” of S.’s account in
chief was weakened by the cross-examination in which it was
suggested to S. that if the appellant had assaulted her, as she
had testified, she could have made sure that she left the store
first and got into the opposite side of the car from him. The
reason she had not done so was because she had not been
assaulted. She did not accept the suggestion.
97If this were the only ground of appeal relating to this
conviction I might well have been inclined to apply the proviso
in favour of the respondent, chiefly because the appellant’s
counsel at trial did not submit to the trial judge that the cross-
examination should also have been read back. This may be a good
indication of the degree of headway that was, in fact, made in
the cross-examination.
6. The conduct of the prosecutor
98This ground of appeal is based upon two statements made by
Crown counsel at the trial. In the first of them, he suggested
to the appellant in cross-examination that the appellant had told
Mr. Netherwood (the owner of the gun shop) that “[T.] had been
chasing you [that is, the appellant] since she was seventeen and
she just turned eighteen a few days ago.” The appellant
answered: “No, that’s not true.” Crown counsel had made no
attempt to prove the statement of the appellant when Mr.
Netherwood had testified as part of the Crown’s case. This may
have been because, possibly contrary to Crown counsel’s
expectation, Mr. Netherwood indicated that T. had not been
introduced to him. Further, Crown counsel led evidence from T.
on what the appellant said to Mr. Netherwood and it did not
include anything like the facts in the question to the appellant.
99The facts stated in the question were consistent with an
important part of the Crown’s case – that the appellant had had
sexual contact with T. In light of R. v. Bencardino (1973), 15
C.C.C. (2d) 342 (Ont. C.A.) at 347 which approved the rule that
“[a]n advocate is entitled to use his discretion as to whether to
put questions in the course of cross-examination which are based
on material which he is not in a position to prove directly” (Fox
v. General Medical Council, [1960] 1W.L.R. 1017 at 1023), I
cannot say that there was any “illegality” (Bencardino at p. 347)
in the question.
100However, counsel may have been entering into a
problematic area of ethical responsibility. It is a breach of
professional ethics for counsel to “knowingly assert something
for which there is no reasonable basis in the evidence, or the
admissibility of which must first be established.” The Law
Society of Upper Canada, “Rules of Professional Conduct”, r.
10.2(g); Sopinka et al, The Trial of an Action, 2nd ed. (1998),
at pp. 96-98 and 126. Professional ethics are involved because
the stating of facts for which there is no foundation can,
depending on the circumstances, be unfair and affect the fairness
of the trial process. If this is so, it may be that the rule in
Bencardino should be reconsidered and modified. Sopinka et al,
op.cit., at p. 126, note 116 suggests that the Law Society rule
“should merely prohibit questions for which there is no
foundation in the information available to counsel.”
101I should note that defence counsel did not object to
the question and that in his charge the trial judge instructed
the jury that they were to ignore any suggestion put to a witness
by counsel unless the witness adopts it as true.
102The other statement of Crown counsel was made to the
jury in the course of his address. He said to the jury that the
defence counsel in her address to the jury had expressed her
opinion on the evidence. (Defence counsel had said, in dealing
with the standard of proof, “… if contrary to my expectations you
actually get to the stage where you actually say to yourself, you
know what, probably he did it. Even then your duty is to say
‘not guilty’ because ‘probably’ is not good enough.”) Crown
counsel then said it was a rule “that counsel should not give
their opinion of the evidence” and that defence counsel had done
this. He then said: “She is representing [Mr. D]. It’s her job
to get him acquitted. [T]hat was an improper comment.”
103It is not clear to me that defence counsel’s statement
to the jury amounted to the expression of her personal opinion on
the evidence, as much as being a hopeful submission, in the form
of a prediction, as to what the jury should find. Assuming,
however, that Crown counsel’s assessment was right, I do not
think that he followed the proper course. If he had a complaint
regarding defence counsel’s address he should have made it to the
judge and not used it as a basis to attack defence counsel in his
address to the jury.
104It may not have been intended by Crown counsel but his
remarks amounted to the statement that because it was defence
counsel’s “job to get [the accused] acquitted” it was
understandable that she would break a rule and make an improper
comment. With respect, this was an aspersion of counsel which
could have impacted on the fairness of the trial. If the matter
had been left in the hands of the judge, there is no doubt that
the instruction to the jury would not have taken the same form as
Crown counsel’s address.
105I note that defence counsel did not object to Crown
counsel’s statement. This should be taken into account in
assessing the degree of prejudice occasioned by Crown counsel’s
statement.
7. The instruction to the jury on the need for unanimity
106The trial judge instructed the jury on the need for
unanimity as follows:
Since this is a criminal trial you must be unanimous,
as I mentioned earlier, in your verdicts. You must
reach a verdict on each count and you must be
unanimous as to that verdict. It is necessary that
each of you agree on each of the verdicts that you
see fit to return. However, you are entitled to
arrive at your verdicts by different routes because
you are not required to be unanimous as to your views
on the evidence. That is each of you may have
different reasons for reaching a particular verdict,
but you all must be agreed on that verdict.
107Although it is correct for a trial judge to instruct a
jury that they must be unanimous in any verdict which they
return, it is incorrect to instruct them in such a way that they
may think that there is an obligation to agree upon a verdict.
R. v. Naglick (1993), 1993 64 (SCC), 83 C.C.C. (3d) 526 (S.C.C.) at 536.
108I read the first two sentences in the quoted
instruction as plainly telling the jury that they had to reach a
verdict on each count and that this had to be unanimous on each
verdict. This left no room for disagreement.
109The matter may, possibly, be softened by what is in the
third sentence which could be interpreted as indicating that the
jury could “see fit” not to return a verdict if there was
disagreement. In view of the unequivocal nature of the first two
sentences, I have doubt whether the jury would interpret the
third sentence this way. It would involve reading the second
sentence out of the charge. (The statement in the first sentence
that the trial judge had mentioned the obligation to be to be
unanimous earlier in his charge is a reference to a passage in
which he had said: “Also keep in mind that you need not all agree
on the evidential basis of your verdicts, though you must be
unanimous as to the verdicts on each count in the indictment.”)
110In relation to the instruction on unanimity I should
also refer to what the trial judge said to the jury at the end of
the charge. He told them that after they had arrived at their
verdicts the court would reassemble. He then said:
The foreperson will then be asked to stand and the
clerk will ask “members of the jury, have you agreed
upon a verdict”, and all of you are expected usually
in unison or roughly in unison to say “yes, we have,
“ if that is so. The clerk will then ask the
foreperson with respect to each count “how do you
find the accused, guilty or not guilty,” then the
foreperson will on your behalf indicate which verdict
the jury has agreed upon. The clerk will then say,
once the verdict has been announced by the foreperson,
“hearken to your verdict as the court hath recorded
it,” and she will then repeat what your verdict is
with respect to each count and say “so say you all”.
At that point if anyone does not agree with the verdict
that is the time to say so. I would hope that you
would be agreed on your verdict before coming back into
the court and announcing it. Upon you as a group
answering that that indeed is your verdict, I will then
sign the indictment so indicating.
111The first sentence implies the possibility that the
jury may not have agreed upon a verdict. Later on it is clearly
indicated that a juror may not have agreed with a verdict that
has been announced.
112I need not engage in a detailed analysis of the two
quoted parts of the charge together and decide the extent to
which the second part qualified the first part. I think it is
fair to say that, at least, some jurors could have been confused
on their right to disagree.
DISPOSITION
113For these reasons, I would allow the appeal, set aside
the convictions, and order a new trial on counts 3 to 6.
Released: May 11, 2000
“J.W. Morden J.A.”
“I agree R. McMurtry C.J.O.”
“I agree Louise Charron J.A.”
