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:
An order restricting publication in this proceeding under ss. 486.4(1), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. W.D.D., 2008 ONCA 755
DATE: 20081110
DOCKET: C47103
COURT OF APPEAL FOR ONTARIO
Sharpe, Lang and Epstein JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
W.D.D.
Appellant
Jonathan Dawe and William Thompson, for the appellant
Peter Scrutton, for the respondent
Heard: November 6, 2008
On appeal from the conviction entered on February 10, 2007, and the sentence imposed on April 17, 2007, by Justice G. Gordon Sedgwick of the Superior Court of Justice, sitting with a jury
By the Court:
[1] The appellant appeals his conviction and sentence on one count of sexual exploitation.
[2] The complainant was the daughter of the appellant’s common law wife. The indictment alleged four counts of sexual exploitation related to the time when the complainant was a teenager living with the appellant and her mother. A fifth count alleged that the appellant sexually assaulted the complainant several years later when she was married and living with her husband. The jury found the appellant guilty of one count of sexual exploitation, acquitted the appellant on another count of sexual exploitation and acquitted the appellant of sexual assault. The jury was unable to reach a verdict on two remaining sexual exploitation charges and a mistrial was declared in relation to those counts.
[3] Well into deliberations, the jury asked the following question:
Is the jury to decide each charge strictly on the evidence presented for that charge? I.E. If, for example, a juror does not accept that one of the incidence/charges happened, should that influence his/her decision on another charge, or does each charge have to stand on its own evidence?
[4] In discussions regarding whether the question concerned “evidence” or “credibility”, both the appellant’s counsel and Crown counsel raised concerns regarding the possibility that the jury may have been under the mistaken impression that they were obliged to compartmentalize their assessment of the complainant’s credibility to the individual counts. Based on the wording of the question, counsel were concerned that the jury may have decided one count in a manner that called the complainant’s credibility into question and that the jury did not know whether they could use that credibility assessment in their deliberations pertaining to the other counts.
[5] Despite the concerns of counsel, the trial judge decided to restrict his answer to the question of “evidence”. The trial judge did so because he was concerned that he would add to the jury’s confusion if he instructed them at the same time not to compartmentalize their credibility findings. The trial judge explained this to counsel:
He says, “A juror.” Maybe this is just a hypothetical juror. I don’t know. “If, for example, a juror does not accept that one of the incidents happened,” that doesn’t necessarily mean that the reason was because he believed one story and not the other. It just means that he doesn’t think it happened and you can’t – credibility, I think, will muddy the waters because credibility just goes across the whole field, but it is not responsive to their question because they are saying “Is the jury to decide each charge strictly on the evidence presented for that charge?”
[6] The instruction that the trial judge decided to give to the jury’s question came from David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005). The instruction is designed for a jury considering a single accused charged with multiple counts relating to different complainants where there is no similar fact ruling permitting cross-count use of the evidence.
[7] Before giving this instruction, the trial judge told the jury: “We had some difficulty determining whether the way we read your question was the way you read it, but I have a charge to read to you that we think is responsive to the question.” The trial judge then proceeded to tell the jurors to consider that each allegation was a separate charge and that each count must be decided separately. He instructed the jury that, “You must make your decision on each charge only on the basis of the evidence that relates to that charge …. You must not use evidence that relates only to one charge in making your decision on any other charge.” He concluded by telling the jury that if they had any further questions arising from the answer, he would deal with them the following morning when the jury resumed its deliberations.
[8] While the trial judge’s answer correctly recited the law on cross-count use of evidence, we agree with the appellant that it was not responsive to the jury’s question. There is at least a reasonable prospect that the jury’s question related to the issue of whether disbelieving the complainant on one or more counts was something they could use when assessing her evidence on the other counts. We also agree that there is a at least a reasonable prospect that the trial judge’s answer to the question could well have led the jury to think that they were not to take into account an adverse finding of credibility on one or more counts when assessing credibility on the remaining counts - even though this result was clearly not intended by the trial judge.
[9] At the time the question was posed, the trial judge did not know that the jury would convict on one count and acquit on other counts. However, the appellant is entitled to have his appeal decided on the basis of the entire record and the verdict. In our view, given the acquittals on certain counts and the failure of the jury to agree on other counts, and given that the complainant’s credibility was a central issue at the trial, there is at least a strong possibility that some members of the jury either did not accept or were left with a reasonable doubt about the complainant’s credibility on the counts that did not result in conviction.
[10] As Cory J. said in R. v. S. (W.D.) (1994), 1994 CanLII 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.) at p. 8:
There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion; please help us. That help must be provided.
[11] The respondent further argues that in any event the jury would not have been misled by the answer because the application of credibility to all counts was a matter of common sense. We cannot agree that it would be safe to rely on that proposition. In the light of the issues raised in the evidence, the jury’s verdicts would indicate that credibility likely was the issue. If, as we find, the trial judge’s answer suggested to the jury that they were not to apply a credibility assessment across counts, we are not prepared to assume that the jury would ignore that legal instruction and persist in deciding the case on the basis of common sense.
[12] We also do not accept the Crown’s argument that the jury would have asked a further question in the event they remained unclear about the issue of credibility. This argument presupposes that the jury did not accept the trial judge’s instruction to consider the counts in isolation. In the light of the trial judge’s instruction, the jury may well have been under the impression that the trial judge had fully answered their question and that they were bound by that answer.
[13] The Crown also argues that the jury’s verdicts do not provide information about what the jury did and did not believe and that the jury could have arrived at the verdicts for reasons unrelated to credibility. Nonetheless, there remains a reasonable probability that the jurors who acquitted on some of the counts, absent the instruction, would have used their assessment of the complainant’s credibility to acquit the appellant on the count on which he was convicted.
[14] Finally, the Crown argues that the jury’s guilty verdict reflected the fact that it was the only count where the complainant’s evidence was corroborated by the complainant’s sister. The count in question involved the allegation that the appellant on one occasion climbed into the complainant’s upper bunk bed and rubbed his penis against her leg through her clothing. The sister did not describe witnessing sexual activity. The only significant observation made by the sister was that she saw her step-father’s head going under the covers of the complainant’s bed on the morning in question. However, this observation was not consistent with the complainant’s evidence or with the allegation. The count did not contain an allegation of any other sexual misconduct.
[15] We conclude that the appeal must be allowed, the conviction set aside and a new trial ordered. In the light of that result, it is unnecessary to deal with the appellant’s sentence appeal.
RELEASED: RJS Nov 10, 2008 “Robert J. Sharpe J.A.”
“S.E. Lang J.A.”
“G. Epstein J.A.”