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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant's 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2019-07-11

Docket: C64259

Judges: Rouleau, Watt and Huscroft JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

J.B.

Appellant

Counsel

For the Appellant: Richard Litkowski, Anthony Bryant and Mitchell Huberman

For the Respondent: Kevin Rawluk

Hearing and Appeal

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.

Decision

Watt J.A.:

Introduction

1Predictability 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.

2Jury 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.

3During 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.

4In 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 judge's responses to requests made and questions asked by the jury during deliberations.

5These 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

6The 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

7The complainant was 20 years old when she testified at trial. The appellant was 73. They were related to one another.

8The 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.

9The 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

10The 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 appellant's house alone or to stay there overnight.

11When 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 Appellant's Account

12The appellant immigrated to Canada in 1977. In his testimony at trial, he denied groping the complainant's breasts, pinching her nipples or fondling her vaginal area. He also contradicted the complainant's 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

13The 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 judge's charge to the jury.

14I would paraphrase the grounds of appeal as claims that the trial judge erred:

i. in providing the jury with transcripts of portions of the appellant's 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 appellant's 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 complainant's 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

15This ground of appeal focuses upon the trial judge's 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

16The 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.

17The Crown cross-examined the appellant on several passages in his police interview on the basis that those passages were inconsistent with the appellant's 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

18As 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 appellant's "interrogation".

19With 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.

20The 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

21Counsel 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

22The 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.

23In 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.

24The appellant contends that the trial judge should have responded to the jury's 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 appellant's 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 appellant's 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.

25The respondent repudiates this claim of error. The trial judge was required to respond to the jury's request. She did so. The method she chose responded directly and completely to the jury's 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 jury's request.

26The trial judge's 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.

27The 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 jury's 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

28To assess this claim of error, I find it helpful to enlist the assistance of some disparate strands of principle extracted from our adjective law.

29To 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.

30As 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.

31On 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.

32Witnesses in criminal proceedings may be cross-examined on prior statements inconsistent with their trial testimony in a variety of different circumstances. A party's own witness, for example, under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA"). Or an opposite party's 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.

33Turning next to procedural considerations, in particular, the obligation of trial judges to answer questions or respond to requests from deliberating juries.

34Questions 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.

35Sometimes, 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?

36In 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.

37The 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 jury's 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.

38The 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 jury's deliberations.

See De Bellefeuille, at para. 35.

39A 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.

40During 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.

41On 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

42For 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 judge's response to this jury request reflects error, as I explain below.

43I begin with the uncontroversial: the propriety of cross-examination on the out-of-court statement and its evidentiary value.

44Once 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.

45In 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.

46The 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.

47Where 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.

48In this case, the trial Crown's 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.

49Despite 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.

50In 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 appellant's explanation of the inconsistency, if any, between the statement and his trial testimony.

51In the result, what happened here was that the jury was provided with portions of the appellant's 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 Appellant's Testimony

52This ground of appeal also focuses on and asserts error in the judge's response to the jury's 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

53The relevant events took place during the second day of the jury's 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

54Late 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

55The playback of the complainant's testimony in its entirety began and continued until the luncheon recess.

The Discussion Request

56When 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 complainant's evidence had been completed so that they could discuss her testimony prior to hearing the replay of the appellant's evidence.

57The replay of the complainant's testimony was completed at about the time of the dinner recess. The trial judge sought the jury's guidance about their wishes for discussing the complainant's testimony in accordance with their earlier request.

The "Deadlocked" Note

58Instead of responding to the judge's request about time for discussion of the complainant's 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

59With 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 appellant's testimony at 10:00 a.m.

More Notes from the Jury

60When 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 Appellant's Evidence

61The trial judge and counsel discussed the jury's note about not wanting to hear a replay of the appellant's testimony. All agreed that the recordings would not be replayed. No replay took place.

The Arguments on Appeal

62The appellant contends that the trial judge erred in failing to require the jury to listen to the recording of the appellant's testimony in accordance with their original request. The trial judge was not required to accept the jury's revised position. The fundamental principle is that the jury should receive a complete, accurate and balanced perspective. A replay of the appellant's testimony was essential to ensure that the jury would not give undue weight to the complainant's testimony. This is all the more so when the jury had twice reported an inability to reach a unanimous verdict.

63The 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 jury's 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 appellant's evidence be replayed to ensure balance and to give effect to the jury's original request.

64The respondent rejects any suggestion of error in connection with the trial judge's handling of the jury's withdrawal of their request for a replaying of the recording of the appellant's testimony.

65At 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 appellant's 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 complainant's testimony than by a replay of the appellant's evidence with its flaws on full display.

66The 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.

67Even if we were to accept that the trial judge should have countermanded the jury's unequivocal reversal in connection with the appellant's 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 appellant's 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

68It is unnecessary to repeat what has already been said about the importance of in-deliberation questions and requests by the jury and the trial judge's 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.

69The nature of the judicial response, as might be expected, is linked to the particular terms of the jury's 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, aff'd 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.

70In 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.

71The 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 appellant's 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.

72In 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 counsel's 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 complainant's 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.

73In R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont. C.A.), the jury asked for a transcript of the Crown's 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 counsel's 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.

74In 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.

75In 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 jury's request and the judge's response.

See Ferguson, at paras. 88-96.

76Two further authorities warrant brief mention. Each involves a request for portions of the evidence adduced at trial by a deliberating jury.

77In 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 Doolin's conversation with the police on arrest and Fogel's testimony about his telephone call. Part way through the rereading of the cross-examination of one of the officers involved in Doolin's statement to police, the foreperson of the jury told the trial judge that the jury members were indicating "we've 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.

78After 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 Fogel's evidence explaining his telephone conversation: Hobart, at p. 541.

79On appeal, counsel argued that having heard the tape of the telephone conversation, the trial judge was required to read to them Fogel's 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 Fogel's testimony about the telephone conversation despite the jury's emphatic statement that they did not wish to hear it: Hobart, p. 543. At all events, the failure to read back Fogel's explanation caused no substantial wrong or miscarriage of justice: Hobart, at p. 543.

80In 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 complainant's 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 complainant's cross-examination. Relevant factors included:

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

ii. the judge's instruction that the videotape was only one piece of evidence; and

iii. the judge's 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

81As I will briefly explain, I would not give effect to this ground of appeal.

82First, in this case, the jury's note indicated that their collective decision that a replay of the appellant's 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.

83Second, this is a case in which the jury heard all the complainant's 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.

84Third, defence counsel, whose competence and level of assistance is not challenged, did not ask, let alone insist that the appellant's 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 appellant's testimony as they surely would have been by rehearing it.

85Fourth, 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"

86This 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

87The background about the jury's several requests and the trial judge's responses as the jury's 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

88The 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 jury's 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

89The replay of the recording of the complainant's 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.

90In 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

91When 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 jury's earlier request for a replay of the appellant's 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.

92The 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 juror's 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

93About 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".

94About 25 minutes later, with the assistance of counsel, the trial judge answered the jury's question. She said nothing to the jury about receipt of the juror's note about continuing deliberations the following day.

The Verdict

95About 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

96The 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 appellant's testimony; and the juror's 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.

97In 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.

98The 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.

99In 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 appellant's 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.

100In 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.

101The respondent disputes the appellant's claim of a "rush to judgment" in the circumstances, as well as the assertion that the exhortations were coercive.

102The 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.

103According 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

104Several principles govern the circumstances in which exhortations should be given to deliberating jurors and the content of those exhortations.

105The purpose of an exhortation is to encourage jurors to reach a unanimous verdict by reasoning together and considering each other's 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 jury's 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.

106The 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.

107Jury exhortation must also be free of anything that would have the effects of undermining each juror's 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.

108To 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.

109A 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

110In combination, several factors persuade me to give effect to this ground of appeal.

111The 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.

112Within 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.

113The 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.

114The following morning, the jury reversed its earlier request to have the recording of the appellant's 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.

115In 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

116The 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.

117To situate the complaint in its proper setting, a brief reference to three aspects of what occurred at trial will suffice.

The Additional Background

118In general terms, the controverted issue at trial was whether the offences alleged ever took place.

The Positions of the Parties at Trial

119The 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.

120The 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 complainant's testimony and the evidence of others, including about what the complainant reported to them.

The Charge to the Jury

121In 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.

122After 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.

123In her instructions on the counts of sexual interference, the trial judge summarized the evidence on the essential elements of the complainant's 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.

124In 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.

125Defence 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

126The 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.

127The 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.

128In 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 judge's obligation.

129The 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 mother's reaction to the disclosure. The conflicting evidence about her physical development. The contradictory evidence about what her mother reported about the complainant's 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.

130The 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.

131This 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

132The 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.

133First, 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.

134Second, 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.

135Third, 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.

136Fourth, the entitlement of the parties is to a proper charge, not a perfect charge: Jacquard, at para. 2.

137Fifth, 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

138As I will briefly explain, I would also give effect to this ground of appeal.

139At 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.

140In 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 jury's understanding of the value and effect of evidence that tolled against the complainant's 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 appellant's denial, without more, does not equate with proof beyond a reasonable doubt of his guilt.

Conclusion

141For 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.