W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any information that would disclose the identity of the complainant, has been made and continues.
DATE: 20030528
DOCKET: C37768
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., MORDEN and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Nadia E. Thomas,
for the respondent
Respondent
- and -
M.C.M.
Alan D. Gold,
for the appellant
Appellant
Heard: March 10, 2003
On appeal from the convictions entered on February 9, 2002 by Justice Susan Himel of the Superior Court of Justice, sitting with a jury, and the sentences imposed by Justice Himel on February 19, 2002.
CRONK J.A.:
[1] The appellant was charged with three counts of sexual exploitation, three counts of sexual interference, and three counts of sexual assault involving his daughter, H.M., when she was between the ages of eight and twelve years. The offences allegedly occurred during each of the summers of 1991, 1993 and 1994. In February 2002, after an eleven-day jury trial, the appellant was convicted of one count of sexual assault and one count of sexual interference concerning the 1993 offences. He was sentenced to fifteen months imprisonment on each count, to be served concurrently. The trial judge entered a verdict of not guilty at the end of the trial on the three sexual exploitation counts. The appellant was acquitted of the remaining four counts concerning the 1991 and 1994 offences. He appeals his convictions, seeks leave to appeal against sentence and, if leave be granted, appeals his sentences.
I. FACTS
[2] H.M. was born in Oakville, Ontario in August 1982. Her parents did not live together and were not in a position to care for her. Accordingly, she was sent as an infant to Trinidad to be raised by her aunt, the appellant’s sister. For many years, she travelled frequently to Toronto, accompanied by her aunt or another adult, to visit her father. In addition, the appellant travelled to Trinidad at least annually to see H.M. and to visit his girlfriend who resided in Tobago. He also contributed financially to H.M.’s support. H.M. did not meet her mother until she was seven years of age.
[3] According to H.M., when she was eight years of age, she travelled to Toronto with her father to spend the summer of 1991 with him at his condominium. She claimed that her father began to sexually abuse her during that visit. Initially, her father began to kiss her in an intimate fashion on a daily basis by putting his tongue into her mouth. Thereafter, abusive activities by the appellant escalated to include the massaging of her clitoris several times each week, the placement of the appellant’s penis between her legs on several occasions, and daily baths during which the appellant would wash and dry her, and rub lotion and powder over her body.
[4] H.M. spent the summer of 1992 visiting her mother in the Toronto area. The following year, when she was turning eleven years old, she returned to stay with her father for the summer of 1993. According to H.M., the appellant began taking showers with her that summer, after which he would lay her on a bed, fondle and suck her breasts, and rub lotion and baby powder on her body. The appellant also continued to kiss her in an intimate manner. H.M. could not recall whether oral sex with the appellant began in 1993 or the following summer when she again returned to Canada from Trinidad.
[5] H.M. testified that the abuse continued unabated during the summer of 1994. She said that during her two-month visit with her father that year, he continued to kiss her inappropriately more than once per week, and to touch and suck her breasts. As well, he performed oral sex on her more than once per week, requested that she sleep with him in his bed and, on several occasions, positioned the rear of her body against his genitalia while they were using his Jacuzzi bath. H.M. claimed that the appellant also frequently “peeked” at her that summer when she was showering alone.
[6] According to H.M., numerous incidents of sexual abuse also took place during the appellant’s visits to Trinidad between September 1994 and January 1996. H.M. said that on one occasion during such a visit her father shaved her pubic area. On this and other occasions, he performed oral sex on her. He also required H.M. to masturbate him. In another incident, the appellant encouraged H.M. to put his penis in her mouth. She said that she did so but stopped after a few seconds because she did not want to do it.
[7] H.M. alleged that during the period September 1994 to late 1999, she told numerous people about the appellant’s abusive activities. She said that in 1994 she told her aunt, the appellant’s sister, that her father had touched her. According to H.M., her aunt responded by telling her that she should not let her father touch her. Her aunt made her feel that the incidents were her fault. H.M.’s aunt testified at trial for the defence. She denied having been told by H.M. of any abuse by the appellant. She acknowledged, however, that she wrote to H.M. in October 1997, cautioning her that: “It pays to shut-up and think before saying anything regrettable. Anyone has to know all about your family affairs – No, no, no. ...Your future is in your hands. THINK and BE SILENT.”
[8] H.M. maintained that she realized the abuse was wrong after taking a biology class at school in early 1996 when she was thirteen years of age. Thereafter, although she again visited her father for part of the summer of 1996, during which he made vulgar and harassing remarks about her breasts and asked to see them, she managed to avoid situations in which further abuse might occur. She refused to allow the appellant to touch her or to see her breasts. Later that summer she told her mother, her brother and a family friend of the abuse. After doing so, she remained at her mother’s apartment until the day before her scheduled departure for Trinidad. She said that the family friend spoke to the appellant about the abuse. The appellant became “really angry” at her, stopped contacting her, and began to avoid her.
[9] The complainant’s mother, Y.M.K., also testified at trial. She confirmed that H.M. had disclosed the appellant’s abuse to her during the summer of 1996. She acknowledged that she told her daughter to forgive her father and not to tell anyone about the abuse because it might damage the appellant’s reputation. She further advised her daughter not to report the abuse to the police. She claimed that she spoke to the appellant, however, and warned him that she would inform the police if he ever abused their daughter again.
[10] H.M.’s mother also testified about other troubling incidents involving the appellant and H.M. She said that during the summer of 1994, she observed that H.M. was unhappy, did not like to be touched, was reluctant to bathe when the appellant was nearby, and was afraid to undress. She also saw the appellant in the bathroom while H.M. was bathing. He was pulling at the shower curtain and H.M. yelled “he’s peeping at me”. Y.M.K. claimed that, on another occasion, she saw H.M. sitting and leaning against the appellant on a rocking chair. The appellant’s hand was across H.M.’s chest and on her breast. On other occasions, when the appellant hugged H.M., Y.M.K. noticed that his chest was pressed against H.M.’s chest.
[11] In addition, Y.M.K. said that on the day before H.M.’s scheduled return to Trinidad at the end of August 1996, she accompanied H.M. to the appellant’s home so that H.M. could retrieve her belongings and passport. Y.M.K. claimed that she stayed awake all night at the appellant’s home, in the same room as H.M., to prevent any further abuse.
[12] In July 1997, H.M. moved to Toronto against her father’s wishes to live with her mother. Thereafter, H.M. had minimal contact with the appellant. He terminated his financial support of H.M. at about the same time.
[13] During the years 1997 to 2000, H.M. lived with her mother, friends and, ultimately, her boyfriend at his parents’ home. During this period, H.M. told her best friend, her boyfriend, and the appellant’s former wife about the abuse by the appellant. Her boyfriend testified at trial. He confirmed H.M.’s disclosure to him of her father’s abuse and described an incident when he and H.M. met the appellant for dinner. On that occasion, the appellant allegedly was looking at H.M.’s breasts and, according to H.M.’s boyfriend, was “continually looking at her up and down…her legs, her body”.
[14] In February 2000, H.M. disclosed the details of her father’s sexual abuse to her school guidance counsellor at about the time that she applied to the City of Toronto for financially assisted housing. In her application, she disclosed that she was not living with her father because of his prior abuse of her.
[15] The appellant testified at trial in his own defence. He denied abusing H.M. and maintained that all of her allegations of abuse were fabricated. It was his position that H.M. was motivated to lie about him because of the collapse of their relationship, the termination of his financial support, and his relationship with a woman of whom H.M. did not approve. His trial counsel (not counsel on this appeal) argued that there was late disclosure of the abuse by H.M., she was pressured by her boyfriend to make false allegations against her father, and her mother had an “agenda” against the appellant.
[16] The appellant also claimed that H.M. was not in Canada at the time of the alleged 1991 offences. In support of that claim, he relied upon travel stamps in H.M.’s expired passport, which he said evidenced travel by her to Canada before and after, but not during, 1991. He also relied on travel stamps in his own passport dating from 1991, which he asserted demonstrated that he was absent from Canada during part of the time that H.M. claimed to have been with him in Toronto.
[17] The appellant acknowledged that H.M. lived with him during the summer of 1993. In connection with the summer of 1994, however, he maintained that H.M. lived with her mother, and not with him. In support of that claim, he relied upon a letter from H.M. written to him in June 1994, in which H.M. asked if she could move from Trinidad to live with her mother in Canada. The appellant maintained that he refused to allow H.M. to leave her schooling in Trinidad, but that he agreed that she could live with her mother for the summer of 1994. As I discuss later in these reasons, the appellant also relied on three letters written to him by H.M. in August 1997, which he claimed demonstrated that he had a loving, non-abusive relationship with his daughter or, alternatively, that H.M. could not be believed and was prepared to lie to get what she wanted.
[18] The appellant further denied that H.M.’s mother had maintained an all-night vigil at his home at the end of August 1996, in the manner described by her. He also claimed that H.M. barged into his condominium apartment in April 2000, demanding the use of it because she had nowhere to live. She had earlier requested use of the apartment and the appellant had declined. He said that, during the April 2000 incident, H.M. threatened him by saying: “You have this place closed up and I have nowhere to live. You are going to regret this. I’m going to destroy you.” H.M. testified that no such conversation took place and that she never threatened her father.
II. ISSUES
[19] Before this court, the appellant raises several issues on his appeals from conviction but, in my view, they may be expressed as follows: (i) did the trial judge err by failing to repeat a W.(D.) instruction in accordance with R .v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) in response to questions posed by the jury during its deliberations; and (ii) are the jury verdicts convicting the appellant of sexual interference and sexual assault in connection with the 1993 incidents unreasonable? One issue also arises on the appellant’s appeal from sentence, namely, whether the trial judge erred in not imposing conditional sentences.
III. ANALYSIS
[20] On the view that I hold of these appeals, it is only necessary to address in detail the first issue raised on the appellant’s appeals from conviction.
(1) The Need for Repetition of a W. (D.) Instruction
in Response to Questions from the Jury
[21] The trial judge began her instructions to the jury on the law with an explanation of the meaning of the presumption of innocence. She next outlined, correctly in my view, the nature of the burden of proof applicable in a criminal trial and the meaning of reasonable doubt. Thereafter, she detailed the manner in which credibility assessments may be made and instructed the jury that it was to consider the whole of the evidence in reaching its decision, including the testimony of the witnesses and the exhibits filed at trial. She then provided a textbook instruction in accordance with R. v. W.(D.), supra. Before proceeding to next instruct the jury on the assessment of H.M.’s credibility in particular, the trial judge said:
Keep in mind that you are not compelled to choose between the evidence favouring the Crown and the evidence favouring [the appellant], particularly if each version appears to be credible, in the sense that you are unable, after reasonable and thorough deliberation, to determine which witnesses are telling the truth. Rather, the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt.
[22] It is important to observe at the outset that the appellant raises no objection to the trial judge’s instructions in the main charge concerning reasonable doubt and the Crown’s burden of proof. The trial judge’s instructions on those matters in the main charge were comprehensive and clear. Rather, the appellant submits that the progress of the jury’s deliberations and the nature of the questions asked by the jury demonstrate that repetition of a full W.(D.) instruction in response to the jury’s questions was especially critical in this case, and that the failure to provide such a repeat instruction was a fatal error. For the reasons that follow, in the unique circumstances of this case, I agree.
[23] Consideration of the jury’s questions during its deliberations must begin, in my view, with reference to one important aspect of the closing addresses by counsel to the jury.
[24] Shortly after commencing his closing address, the appellant’s trial counsel stressed that there was “absolutely no scientific or medical or psychiatric or any type of clinical evidence whatsoever about [H.M.] having a history of sexual abuse” by her father. He pointed out that there was no D.N.A., fingerprint or other forensic evidence supporting H.M.’s allegations, and suggested that it was a “he say this/she say this” case. Finally, later in his address, he argued that if the events alleged by H.M. occurred, “volumes of evidence” and “independent objective evidence” demonstrating abuse would have formed part of the evidence at trial. He also said: “But the bottom line here is, where is the evidence manifesting, demonstrating this sexual abuse? Where is it? Her words. Her mom’s words. No medical reports. No psychiatric reports. No clinical counsellor reports of any kind whatsoever.”
[25] Crown counsel began his closing address by responding to those defence submissions. He indicated that the “notion that sexual assault victims should come to court with bags of proof, with evidence of torn garments or blood or medical records…” was not “right”, and was “wrongheaded” and “antediluvian” thinking.
[26] In her charge to the jury, the trial judge outlined the Crown’s position on this issue by reminding the jury that the Crown maintained that “it is wrongheaded to expect that a complainant in a sexual assault case will come to court with bags of evidence, and that is not required”. Following the charge, Crown counsel objected to that part of the trial judge’s review of the positions of the parties on the ground that the trial judge had failed to instruct the jury that the appellant’s counsel was wrong to suggest that H.M. was required to provide independent scientific evidence of abuse. The trial judge did not recharge the jury on the issue.
[27] The jury retired to consider its verdict at 12:42 p.m. on February 8, 2002. At 9:30 p.m., the jury sent the following three questions to the trial judge:
(i) Given the lack of tangible evidence, is it possible to reach any decision based on assessment of the credibility of the witnesses?
(ii) Please review the definition of reasonable doubt; and
(iii) Please explain the difference between sexual assault and sexual interference.
[28] The trial judge canvassed those questions with counsel. In connection with the first question, trial counsel for the appellant said:
I do not know that it is necessary for Your Honour to, in effect, go over much of Your Honour’s charge. It seems to me that Your Honour was quite clear in regard to the issue of reasonable doubt on various elements. And perhaps the simple answer that corroboration is not required, coupled with the statement that they have to look at all of the evidence. …They have had a fairly lengthy charge, a detailed charge…and…they couldn’t possibly have forgotten that charge by now.
[29] In connection with the second question posed by the jury, counsel made the following submissions:
[Crown counsel]: I think Your Honour’s charge on reasonable doubt was, from my recollection, close, if not exactly, from model charges. I really don’t know how it can be made any better. …I just do not know how Your Honour could improve on it.
[Defence counsel]: Well, I tend to agree with my friend, Your Honour, on this point. …[F]rom my own note of Your Honour’s charge this morning on reasonable doubt, it includes how it may arise; for example, that they can’t decide on the reliability or credibility of the witnesses. Now, I don’t know if that goes beyond what is being requested here, but, in any event, I do not know that there’s much more that can be said beyond the boiler plate type of definition.
[30] The jury was recalled at 9:40 p.m. In response to the jury’s first question, the trial judge again instructed the jury on how to assess the credibility of witnesses and directed the jurors to look at the evidence as a whole. In response to the second question, the trial judge repeated much of her earlier instruction on reasonable doubt. She did not repeat, however, her original W.(D.) instruction, or otherwise allude to it, in her responses to the jury; nor did she emphasize the Crown’s burden of proof save for indicating that a finding of probable guilt was insufficient and would mean that the Crown had “failed to satisfy you of [the appellant’s] guilt beyond a reasonable doubt”. In fairness to the trial judge, neither counsel requested that her W.(D.) instruction, or her instruction on the burden of proof, be repeated or amplified in response to any of the jury’s questions. In that regard, both counsel expressed to the trial judge their satisfaction with her earlier instruction on reasonable doubt.
[31] The jury resumed its deliberations shortly after the recharge. Approximately one hour later, at about 10:40 p.m., the trial judge received a note from the jury which read: “We have reached a decision on charges number one and two [relating to the 1991 offences]. On charges four, five [relating to the 1993 offences], seven and eight [relating to the 1994 offences] we cannot reach a unanimous decision. Please advise.”
[32] After hearing submissions from counsel, the trial judge discharged the jury for the evening, with the intention that the jurors resume their deliberations the next day. No W.(D.) instruction was given then, or when the jury reconvened the following morning. Similarly, the trial judge did not then, or later, repeat her instruction on the burden of proof.
[33] The jury resumed its deliberations at approximately 9:00 a.m. on the following day. At 3:30 p.m., the jury returned with verdicts of not guilty on the charges relating to the 1991 and 1994 offences and verdicts of guilty on the charges of sexual assault and sexual interference concerning the 1993 incidents.
[34] The appellant argues that the questions posed by the jury, particularly the first question, indicate that the jurors were very troubled and were searching for evidence which would confirm or negate the incidents alleged by H.M. Some of the documentary evidence introduced by the appellant – the passports, for instance – suggested that H.M. was not in Canada in 1991. Further, H.M.’s June 1994 letter to the appellant supported his claim that H.M. resided with her mother during the summer of 1994, and not with him. On that basis, the appellant asserts that, as the summer of 1993 was the only summer in question when H.M. resided with him, he could only have been convicted of the abusive incidents which allegedly occurred in that year. Stated differently, the 1993 offences were the only offences for which the appellant was unable to produce any documentary or other physical evidence confirmatory or supportive of his innocence. For that reason, the appellant argues, he was convicted by the jury of the 1993 offences and acquitted of the 1991 and 1994 offences.
[35] Overall, the appellant asserts that the “pattern of the verdicts” in this case can be seen as demonstrating a misapprehension by the jury of the burden of proof and reasonable doubt, especially where the only verdicts of guilty returned by the jury concerned the counts for which there was no documentary support of innocence. It follows, according to the appellant, that the jury had forgotten the W.(D.) instruction by the time that the jury posed its questions concerning the assessment of credibility in the absence of “tangible evidence” and the meaning of reasonable doubt, thus requiring a repetition of the W.(D.) instruction.
[36] The credibility of the complainant was a central issue in this trial. The appellant also testified in his own defence. In these circumstances, the burden of proof was of fundamental importance. In R. v. W.(D.), Cory J., writing for a majority of the Supreme Court of Canada, stated at p. 409:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge [emphasis in first paragraph in original; emphasis in second paragraph added; citations omitted].
[37] Justice Cory then outlined, in the following terms, what has subsequently become known as the W.(D.) instruction (at p. 409):
A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[T]he requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.
[38] Can it be said here, upon a fair reading of the charge and recharge as a whole, that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply? I am unable to reach that conclusion for several reasons.
[39] First, the content of the jury’s initial question indicated, as recognized by the trial judge and counsel, that the jury was focused on whether it was possible to assess the credibility of the witnesses in the absence of “tangible” evidence confirmatory of the appellant’s innocence or culpability, and how this could be done. In my view, that focus and the question which followed clearly flowed from the closing addresses of counsel, particularly the address of the appellant’s trial counsel, in which references were made to the absence of independent evidence confirmatory of abuse. In posing its first question, the jury may well have assumed that there was an obligation to proffer evidence confirmatory of abuse or innocence. An accused bears no burden in a criminal trial to adduce independent evidence confirmatory of innocence. Similarly, no legal requirement for “tangible” proof confirmatory of abuse attaches to the Crown in a sexual abuse prosecution. Accordingly, the jury’s focus on such confirmatory evidence – of innocence or culpability – was misconceived.
[40] In my view, as some documentary evidence was adduced by the appellant to support his claim of innocence concerning the 1991 and 1994 offences, but was absent in connection with the 1993 offences, the jury’s reference to a “lack of tangible evidence” was likely a reference to the lack of physical or documentary evidence concerning the 1993 offences. These, of course, were the very offences of which the appellant was ultimately convicted. The jury’s first question, therefore, went to the heart of its task in assessing whether the Crown had discharged its burden of proof in relation to the 1993 offences.
[41] Second, although the trial judge gave a correct W.(D.) instruction in her main charge, the fact and content of the jury’s first question indicates that it was in doubt regarding the Crown’s burden and the concept of reasonable doubt as it applied to the assessment of credibility. As Cory J. observed in R. v. W.(D.), it is significant that the recharge was the result of questions from the jury. He said in that connection (at p. 410):
When a jury submits a question, it gives a clear indication of the problem the jury is having with a case. Those questions merit a full, careful and correct response. As well, the answer should remind the jury of its instructions given in the course of the main charge.
[42] The fact that the jury related the absence of “tangible” evidence to the assessment of the witnesses’ credibility signified that the jury misunderstood, or had forgotten, the important direction provided by the W.(D.) instruction: a reasonable doubt could arise, mandating an acquittal, where no determination of the reliability of the testimony of the witnesses could be made. Simply put, I believe that the jury’s first question demonstrated that the W.(D.) instruction was not then on the jury’s radar screen, and had either been forgotten, discarded, or misunderstood from the outset.
[43] Third, if there was any doubt concerning the import of the jury’s first question, it was laid to rest by the nature of the jury’s second question, which was an express request for assistance concerning the meaning of reasonable doubt.
[44] Fourth, the jury’s questions were posed at a key time, more than nine hours after the jury had commenced its deliberations. Thus, unlike R. v. W.(D.), this was not a case where only a short time elapsed between the lengthy main charge and the brief recharge. As Cory J. observed in R. v. W.(D.) (at p. 411):
If the error had occurred in the course of a response to a question from the jury or if the recharge had been given some hours after the main charge, a new trial would have to be ordered.
[45] In this case, the correct instructions by the trial judge in the main charge concerning the burden of proof, reasonable doubt, and R. v. W.(D.) were probably not fresh in the minds of the jurors at the time of the recharge. The first question from the jury manifested its concern and its desire for direction on the assessment of credibility. That question invited and, in my view, required, a renewed W.(D.) instruction. Indeed, such an instruction would have been a full legal answer to the query posed by the jury. While a W.(D.) instruction was not strictly necessary in response to the jury’s second question, standing alone, the first question indicated that there was a critical need to remind the jury of the W.(D.) formulation before it resumed its deliberations. The jury’s second question reinforced that need and provided another opportunity for the instruction.
[46] In summary, given the absence of a renewed W.(D.) instruction, the content of the jury’s first two questions, their integral connection to the jury’s fundamental task of determining the appellant’s innocence or culpability, and the stage of the jury’s delib-erations at which the questions were posed, I am unable to conclude that the jury had not lost sight of the burden of proof and had not misapprehended the bases on which it was required to acquit the appellant of the counts concerning the 1993 offences. The failure to repeat the W.(D.) instruction, in the particular circumstances here, was a reversible error. On that ground alone, I would allow the appeals from conviction and direct a new trial.
[47] In reaching that conclusion, I have considered the decision of this court in R. v. Scott, [2002] O.J. No. 1210, relied upon by the Crown. In Scott, the jury requested during the course of its deliberations “a clear definition of reasonable doubt.” As in the case at bar, the appellant argued in Scott that the answer provided to that question was incomplete because it ought to have included a repetition of the W.(D.) instruction referred to earlier by the trial judge. That ground of appeal was rejected by this court for four reasons: no one at trial suggested that the jury’s request for a definition of reasonable doubt be interpreted in the manner urged on the appeal; in answering the jury’s question the trial judge also invited the jury to tell her if it needed more assistance; a request for further assistance was not forthcoming; and no objection was made by counsel.
[48] The facts in Scott differ from those in this case in at least one material respect. In Scott, the jury’s questions did not reveal any uncertainty by the jury regarding the burden of proof, the means by which credibility assessments were to be made, or the grounds upon which an acquittal was to be entered in accordance with W.(D.). In the absence of such an indication, the request for a definition of reasonable doubt did not itself trigger the need for the repetition of a W.(D.) instruction. That holding would also apply here, but for the jury’s first question in this case. That question, for the reasons given, was an indication of the jury’s confusion regarding its fundamental task. The question, therefore, should have sounded the alarm for a W.(D.) instruction.
(2) Whether the Jury Verdicts are Unreasonable
[49] The appellant makes three arguments in support of his submission that the jury verdicts concerning the 1993 offences are unreasonable.
[50] First, he argues that the defence position at trial was misstated by Crown counsel in his closing address and by the trial judge in her charge to the jury. In that regard, trial counsel for the appellant relied in his closing address to the jury on the three letters written to the appellant by H.M. in August 1997. In those letters H.M., variously, sought to reconcile with her father, asked if she had offended him, pleaded with him to “take [her] back” and allow her to live with him, told him that he was the “world’s greatest dad”, and repeatedly said that she missed him. The appellant argued at trial that the contents of the letters accurately depicted the true nature of H.M.’s relationship with him, that is, an abuse-free relationship. In the alternative, he asserted that the letters undermined the Crown’s theory of the case because they demonstrated that H.M. was trying to “con” her father and that she was prepared to lie to get what she wanted, namely, to have her father take her back so that she need not live with her mother any longer. The appellant submits that those two prongs of the defence position were not accurately described to the jury by the trial judge and, indeed, were misstated by Crown counsel and by the trial judge.
[51] Second, given that the appellant faced a multi-count indictment, the appellant maintains that the trial judge erred by failing to instruct the jury that if it acquitted the appellant on some of the counts on the basis that H.M.’s evidence was not reliable or worthy of belief, the jury was obliged to then consider H.M.’s “demonstrated falsity” when assessing the appellant’s culpability on the remaining counts.
[52] Third, the appellant submits that the jury reached an unjustifiable compromise in its findings of guilt on the counts concerning the 1993 offences and not guilty on the counts left to the jury regarding the 1991 and 1994 offences.
[53] As a consequence of the first two alleged errors by the trial judge, the appellant maintains that the jury was left with an incomplete view of the defence position and an improperly charged approach to the evidence generally, leading the jury to reach an unreasonable verdict based on a misapprehension of the evidence. Accordingly, the appellant argues that his convictions should be quashed and an acquittal entered or, in the alternative, a new trial ordered.
[54] I do not accept the appellant’s submission that the jury’s verdicts convicting the appellant of sexual assault and sexual interference for the events of the summer of 1993 should be set aside, and acquittals entered, on the basis that the verdicts were unreasonable. The test applicable under s. 686(1)(a)(i) of the Criminal Code is well-established. It is whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36, per Arbour J., quoting R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at 185, per McIntyre J. and Corbett v. The Queen, 1973 199 (SCC), [1975] 2 S.C.R. 275 at 282, per Pigeon J.; and R. v. G.(A.) (1998), 1998 7189 (ON CA), 130 C.C.C. (3d) 30 at 44 (Ont. C.A.). That test, in my opinion, is not met here.
[55] There was sufficient, although not overwhelming, evidence in this case which, if accepted by a properly instructed jury, was reasonably capable of supporting the convictions concerning the 1993 offences. In particular, H.M.’s testimony outlined sexual activities by the appellant in the summer of 1993 which, if believed, grounded the appellant’s convictions. In my view, on the basis of that testimony and considering the whole of the evidence, it cannot be said that no properly instructed jury, acting judicially, could reasonably have convicted the appellant on the counts related to the 1993 offences.
[56] The basis of the appellant’s challenge here, however, is that the jury was not properly instructed, leading the jury to a misapprehension or erroneous assessment of the evidence. Assuming, without deciding, that the alleged errors in the charge occurred, it would follow that the appellant did not receive a fair trial and a miscarriage of justice occurred. That outcome, if established, would require that the appellant’s convictions be quashed and a new trial ordered, not that this court enter verdicts of acquittal: R. v. Morissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.). I have already determined that a new trial is required because of the failure to provide a repeat W.(D.) instruction in response to one of the questions from the jury. Accordingly, it is unnecessary to further consider the two additional errors in the jury charge alleged by the appellant.
[57] I also reject the appellant’s submission that the jury’s findings indicate that it reached unjustifiable compromised verdicts on the charges faced by the appellant.
[58] It is true that the note sent by the jury to the trial judge shortly after the recharge indicated that the jury was divided on the counts concerning the 1993 and 1994 offences. The jury, however, deliberated for an additional day before reaching its findings on the counts relating to those offences. No further questions were posed by the jury and no further notes were received from it.
[59] The jury was entitled to accept H.M.’s evidence on all, some or none of the counts against the appellant. The facts alleged by H.M. concerning the 1993 offences differed in several respects from the facts alleged regarding the 1991 and 1994 offences. In particular, on H.M.’s evidence, the abusive activities expanded during 1993 to include showering by the appellant with H.M. and the fondling and sucking of her breasts. In addition, the 1993 offences were alleged to have occurred two years after the 1991 offences and one year before the 1994 offences. Thus, there was a logical basis upon which to differentiate the abuse allegations.
[60] It was open to the jury to accept H.M.’s evidence regarding the events involving the appellant during the summer of 1993 and to reject her evidence, as it implicitly did, concerning the other counts. Accordingly, in my view, the verdicts here are not so at odds as to indicate that the jury was confused regarding the evidence or that it reached an unjustifiable compromise. That result is not occasioned by every “split” jury verdict: R. v. Tillekaratna (1998), 1998 6341 (ON CA), 124 C.C.C. (3d) 549 (Ont. C.A.) and R. v. McShannock (1980), 1980 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.). In my opinion, therefore, it cannot be said that there was no rational or logical basis for the verdicts concerning the 1993 offences. I would not give effect to this ground of appeal.
IV. DISPOSITION
[61] For the reasons given, I would allow the appeals from conviction, set aside the convictions, and direct a new trial. Accordingly, it is unnecessary to address the appellant’s appeal from sentence.
RELEASED:
“RRM” “E.A. Cronk J.A.”
“MAY 28 2003” “I agree Roy McMurtry C.J.O.”
“I agree John Morden J.A.”