Her Majesty the Queen v. D.J. [Indexed as: R. v. J. (D.)]

73 O.R. (3d) 367

[2004] O.J. No. 4525

Docket: C39236

Court of Appeal for Ontario,

Weiler, Goudge, Blair JJ.A.

November 9, 2004

Criminal law -- Trial -- Jury -- In course of deliberations, jury asking trial judge if they could hear complainant's and accused's versions of alleged assault -- Trial judge erring in permitting jury to view and hear unofficial videotape of relevant portions of trial proceedings in jury room without counsel being present and no control over what portions of evidence they viewed -- Receipt of questions from jury and judge's response to those questions forming part of trial and must take place in presence of all parties and judge in open court.

The accused was convicted of sexual assault and sexual confinement of his wife in relation to an incident occurring on August 27, 2000, and of assaulting his wife in relation to an incident on September 17, 2000. In the course of deliberating, the jury asked the trial judge if it could hear both sides of the events that took place on September 17 and whether they had to agree on every step of the sexual assault that was outlined in the complainant's testimony. In response to the first question, the trial judge gave the jury the option of having the transcript of the accused's and the complainant's evidence regarding what happened on September 17 read to them by the court reporter or watching and listening to an unofficial video recording of the relevant portions of the trial proceedings in the jury room. The jury chose the video option, and watched the video in the jury room, without the accused or his counsel, or any other counsel, present and without any control over what portions of the testimony they re viewed. In response to the second question, the trial judge ascertained that not every member of the jury believed two particular details of the complainant's account of the sexual assault, and instructed the jury that, assuming they accepted the rest of the evidence beyond a reasonable doubt, they were entitled to convict. On appeal, the accused objected to both responses to the jury's questions.

Held, the appeal should be allowed.

While it would have been appropriate for the trial judge to permit the jury to watch and listen to the videotape in open court in the presence of the accused and counsel, ensuring that they were exposed to all relevant portions of both the examinations-in-chief and the cross-examinations of the complainant and the accused, the trial judge ought not to have permitted the jury to view the video in the jury room. Receipt of questions from a jury and the judge's response to those questions form part of the trial and must take place in the presence of all parties and the judge in open court. The rationale for this principle is twofold: first, the accused has a statutory right to be present at all parts of the trial; and second, the judge must always be in a position to perform his or her duty to ensure that the jury rehears all relevant portions of the testimony (both in examination-in-chief and in cross-examination). In this case, it was not known what the jury heard and did not hear in the jury room and what impact, if any, what they saw and heard had on their credibility findings with respect to the accused or the complainant. This case essentially turned on credibility, and questions relating to the credibility of the accused and the complainant could not be neatly isolated in compartments confined to their testimony about what happened on September 17, on the one hand, and on August 27, on the other hand. Consequently, the error in permitting the jury to hear and watch the video without the judge exercising any control over what they saw and heard, and without counsel having an opportunity to make representations in that regard, tainted the convictions with respect to the August 27 charges as well. It could not be said that there was no substantial wrong or miscarriage of justice. The appeal had to be allowed with respect to all counts, on this ground alone.

The trial judge did not err in his response to the jury's second question. On the basis of the charge they had been given, the jury would have been well aware of their duty both to be unanimous in their verdict and also to approach their assessment of the evidence in accordance with the principles set out in R. v. W. (D.).

APPEAL from a conviction imposed by Byers J. with a jury on October 9, 2002, for sexual assault, unlawful confinement and assault.

Cases referred to R. v. Dunbar and Logan, 1982 3324 (ON CA), [1982] O.J. No. 581, 138 D.L.R. (3d) 221, 68 C.C.C. (2d) 13, 28 C.R. (3d) 193 (C.A.); R. v. Hennin, [1993] O.J. No. 1420 (C.A.); R. v. Lalande, 1999 2388 (ON CA), [1999] O.J. No. 3267, 138 C.C.C. (3d) 441 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)

Alexander D. Smith, for respondent. Brian H. Greenspan, for appellant.

The judgment of the court was delivered by

[1] BLAIR J.A.: -- Mr. Greenspan raises three grounds of appeal. He argues that the trial judge erred [See Note 1 at the end of the document]:

(a) in permitting a videotape of the trial evidence to be played by the jury in the absence of the appellant and without exercising a degree of control over the portions of the evidence to be replayed (responding to the jury's request to "hear both sides of the events that took place on the 17th of September");

(b) by responding inadequately to the jury's question with respect to whether they were required to "agree on every step of the sexual assault that was outlined in [the complainant's] testimony"; and,

(c) in permitting a police officer to express his opinion as to the direction of travel of blood stains on a bar stool.

[2] We would not give effect to the arguments respecting grounds (b) and (c), but we are all agreed that the appeal must be allowed on the basis of the first ground raised.

Facts

[3] Mr. [J.] was convicted of sexual assault and unlawful confinement of his wife of 26 years in relation to an incident occurring on August 27, 2000, and of assaulting his wife in relation to an incident on September 17, 2000. He was sentenced to two years' imprisonment.

[4] The incidents took place during a period of time when the parties were under stress, and wont to argue with each other, as a result of the sale of their family business.

[5] The complainant's evidence was that, following an argument between them on August 27, the appellant assaulted her in the bedroom and then took her to the basement where he pushed her over a bar stool, lifted the back of the stool off, placed her head down on the seat and then pounded the back of the chair back into place. He then shaved her pubic area, hit her with a paddle, and forced her to perform oral sex. Following this, he took her back upstairs where they had sexual intercourse.

[6] The September 17 incident occurred after both the appellant and the complainant had been drinking with friends during the day while they were organizing various items to be turned over to the purchasers of their business. There was an argument. The complainant says she announced she was going to bed and then came over and sat on the arm of the appellant's chair. He told her she was staying and gave her a "bear hug" for a few minutes. He then said he was going to cut her hair downstairs and went to get his barber kit. The complainant stormed out. She called the police, who came and arrested the appellant.

[7] The appellant admitted that he had assaulted the complainant on August 27, but denied the sexual assault allegation, and denied confining her to the basement on that date, or assaulting her on September 17.

[8] There were no objections to the trial judge's charge to the jury. About one hour and 15 minutes after commencing their deliberations, the jury asked two questions; the judge responded in a fashion to which no objection is taken. Approximately two hours later, the jury came back with the two questions that have led to this appeal:

(1) "Can we hear both sides of the events that took place on September 17th?"

(2) "Do we have to agree on every step of the sexual assault that was outlined in [the complainant's] testimony?"

[9] In relation to the first question, the trial judge determined that what interested the jury was the testimony of the appellant and the complainant regarding what happened that day. He gave the jury an option: they could have the transcript read to them by the court reporter, or they could watch and listen to an unofficial video recording of the relevant portions of the trial proceedings in their jury room. The jury chose the video option.

[10] The jury was then permitted to watch the video in the jury room, without the appellant or his counsel, or any other counsel, present, and without any control over what portions of the testimony they reviewed. They were left with an instruction that suggested they did not have to watch and listen to both the examination-in-chief and the cross-examination. The trial judge said:

And you should also put your mind to whether you ought to hear any cross-examination on that part too, if there is any, all right, cause, in fairness, if the witness said something, you know, were they cross-examined about that later on. So you at least put your mind to . . . You are not required to hear both examination and cross-examination. My memory of the way that unfolded was that nothing big came out of cross- examination. It was just this is what I say happened and this is what I say happened, but I let you use your own collective wisdom about what you'd like to hear.

(Italics added)

[11] We do not have any information as to what portions of the appellant's evidence and/or the complainant's evidence the jury watched and listened to during their deliberations, which lasted about one and one-half hours until the dinner hour. The verdict was rendered shortly after the jury returned from dinner.

[12] In relation to the second question, the trial judge ascertained that what was concerning the jury was the fact that "not everyone believes the chair and paddle". Was it open to them, nonetheless, to convict on sexual assault in that event, they asked? After discussing the matter at length with counsel, the trial judge responded to the question as follows:

And this is in response to your comment "not everyone believes the chair and the paddle". And my answer to you is assuming you accept the rest of the evidence about that night beyond a reasonable doubt, you would be entitled to convict.

[13] The third ground of appeal relates to the testimony of the identification officer, Constable Gilbert. He was permitted to give opinion evidence regarding the direction of travel of blood stains on the bar stool to which the complainant said she had been tied. He testified that the blood marks were elliptical in shape and had a tail, and observed that when blood is in motion it will tail off in the direction that it is moving. As a result he concluded that the stains of the chair had been moving in a downward direction. This supported the complainant's version of what happened.

Analysis

The video transcript

[14] Assuming the video transcript is a fair and accurate reproduction of the trial testimony, the trial judge could have provided the jury with the option of watching and listening to the videotape in open court in the presence of the appellant and counsel, ensuring that they were exposed to all relevant portions of both the examinations-in-chief and the cross- examinations of the complainant and the appellant.

[15] The trial judge ought not to have permitted the jury to view the video of the trial transcript in the jury room, however. The law is clear that receipt of questions from a jury and the judge's response to those questions form part of the trial and must take place in the presence of all parties and the judge in open court: see R v. Dunbar and Logan, 1982 3324 (ON CA), [1982] O.J. No. 581, 68 C.C.C. (2d) 13 (C.A.), at p. 31 C.C.C.; R. v. Hennin, [1993] O.J. No. 1420 (C.A.), at paras. 3-5; R. v. Lalande, 1999 2388 (ON CA), [1999] O.J. No. 3267, 138 C.C.C. (3d) 441 (C.A.), at p. 445. The rationale for this principle is twofold: first, the accused has a statutory right to be present at all parts of the trial, and second, the judge must always be in a position to perform his or her duty to ensure that the jury re-hears all relevant portions of the testimony (both in examination-in- chief and in cross-examination). In Lalande, Borins J.A. observed, at paras. 10 and 11:

It is common ground on the part of counsel, and I agree, that as the response to questions, or requests, from a jury is part of the trial, the response must occur in open court, in the presence of the trial judge, the defendant and counsel.

The manner adopted by the trial judge in response to the jury's request to hear the complainant's evidence made it impossible for him to perform the duty required of a trial judge when a jury asks to re-hear the testimony of a witness. This court recently reiterated the trial judges' duty in R. v. D. (D.) (1998), 1998 14607 (ON CA), 129 C.C.C. (3d) 506, where the trial judge permitted the jury to hear only the complainant's examination-in-chief and rejected the request of counsel that the cross-examination be read back. In ordering a new trial, the court stated at p. 511:

It is well recognized that there is a duty on a trial judge to ensure that any evidence read back to the jury as a result of a jury question should be read back together with any other portions of the evidence that qualify or contextualize it. In Olbey v. The Queen (1979), 1979 61 (SCC), 50 C.C.C. (2d) 257 (S.C.C.), McIntyre J., writing for the majority of the Supreme Court of Canada stated at pp. 272-3:

Counsel for the appellant contended that the trial Judge was in error in allowing only part of the evidence of Dwyer to be read back. He contended that when part of a witness's evidence is reread all the cross-examination or qualifying evidence should also be read so that the evidence will be put in its proper relation to the whole of the case and so that the evidence will not be isolated and given more emphasis and significance than it should have.

I am in agreement with this proposition, as was Martin J.A., in the Court of Appeal [reported at (1977), 38 C.C.C. (2d) 390]. He said:

I accept, of course the proposition that where the jury requests that the evidence of a witness be read back, it is incumbent on the trial Judge not to allow the jury to hear a part only of the evidence of the witness without also hearing those portions of the evidence of the witness, whether given in-chief or in cross-examination, which weaken or qualify the part read, even though the jury indicates that it does not wish to hear any more of the witness's evidence. Otherwise, the jury is not hearing the evidence of the witness, but only an incomplete, or even an inaccurate account of his or her testimony."

(Italics in original)

[16] Crown counsel acknowledges that the trial judge should have played the videotape in open court in the presence of the appellant and counsel, and directed the jury to watch and listen to both their cross-examinations and examinations-in- chief. However, he submits (i) that the question only related to the assault charge on September 17 and not to the charges arising from the events of August 27, and (ii) that in any event, the appellant suffered no prejudice as a result and, therefore, the appeal should be dismissed on the ground that there has been no substantial wrong or miscarriage of justice: Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).

[17] Mr. Smith argued that based upon the way the second question was put by the jury it was apparent they had already made their basic finding with respect to the sexual assault and unlawful confinement on August 27, but simply were not clear what happened with respect to the chair and paddle. He therefore submitted that it was possible in the circumstances of this case to unravel the effect of the conceded error on the verdicts here.

[18] We do not accept these submissions. Unlike cases such as Hennin, supra -- where there was evidence of no prejudice -- we do not know in this case what the jury heard, and did not hear, in the jury room. We do not know what impact, if any, what they saw and heard had on their credibility findings with respect to the appellant or the complainant.

[19] This was essentially a credibility case, and questions relating to the credibility of the appellant and of the respondent cannot be neatly isolated in compartments confined to their testimony about what happened on September 17, on the one hand, and on August 27, on the other hand. Consequently, the error in permitting the jury to hear and watch the video without the judge exercising any control over what they saw and heard, and without counsel having an opportunity to make representations in that regard, if so advised, tainted the convictions with respect to the August 27 charges as well. It cannot be said that the appellant suffered no prejudice as a result of what transpired, and therefore that there has been no substantial wrong or miscarriage of justice.

[20] Accordingly, the conviction appeal must be allowed with respect to all counts, on this ground alone.

The second question: Did the jury have to agree on every step of the sexual assault outlined in the complainant's testimony?

[21] After confirming that the jury's concern with respect to the second question centred around the fact that not every one of them believed the chair and paddle story, the trial judge directed them that they could nonetheless convict of sexual assault if they accepted the rest of the evidence about that night beyond a reasonable doubt. Mr. Greenspan argued that this response was inadequate because the trial judge did not repeat his earlier instruction that although the members of the jury need not agree on the evidentiary basis of their verdict, they must nonetheless be unanimous in their verdict. In addition he submitted that the trial judge should have coupled this answer with an instruction in accordance with the principles of R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397.

[22] We do not agree. On the basis of the charge they had been given, we are satisfied that the jury was well aware of their duty both to be unanimous in their verdict and also to approach their assessment of the evidence in accordance with W. (D.). We would not give effect to this ground of appeal.

The officer's testimony

[23] Nor are we persuaded that there is merit in the appellant's argument that the trial judge erred in permitting Constable Gilbert to testify about the blood stains.

[24] Appellant's counsel at trial took the position that he was aware of the evidence the police officer was about to give, that it was not contentious, and that he accepted the witness's expertise. It is not open to the defence to challenge this evidence at this stage.

Disposition

[25] For the foregoing reasons the appeal is allowed, the convictions are set aside, and a new trial is ordered.

[26] Mr. [J.] has served all but a few weeks of his term of imprisonment. Mr. Greenspan therefore submits that if a new trial is ordered, we should consider imposing a stay of the proceedings. We do not accept this submission. Mr. [J.] remains subject to a period of probation. We think this issue is best left to the trial judge for determination in the event the Crown decides to proceed with the prosecution and a conviction is registered again.

Appeal allowed.

Notes

Note 1: Appellant's factum, para. 41.