Risk of conviction without jurors’ unanimous agreement on one incident did not arise

Criminal Law - Jury - Miscellaneous

Accused was charged with two counts of sexual assault and of sexual interference, with respect to complainant niece’s allegations that he sexually touched her in two incidents. Jury wrote question in pencil about whether, if they believed first incident they could convict on this alone and, in fainter writing, elaborated “find him not guilty on second” and, after submissions from counsel, judge prepared answer with re-instruction on credibility. Jury revealed they intentionally erased second part and only wanted to know whether they could convict on first incident for both offences which led to trial judge confirming that Crown only needed to prove one incident for conviction on both offences and not reading prepared answer. Accused was convicted of sexual assault and sexual interference. Accused’s appeal from conviction was allowed. Crown appealed. Appeal allowed. Reasons of dissenting appellate judge were substantially agreed with, that jury had been given ample instructions on assessing credibility and burden and standard of proof, that judge’s answer was legally correct, and that question likely arose from way that charges were laid. Additional issues raised by accused for first time on this appeal did not require new trial, as no limiting instruction was required either on issue of character evidence or regarding prior consistent statements. Crown practice of drafting single count of indictment to capture multiple distinct incidents did create risk that accused might be convicted without jurors’ unanimous agreement on any one underlying incident but that issue did not arise in this case. It was clear from jury’s question that jurors unanimously agreed that first incident had been proven and were asking whether unanimity on first incident was sufficient to convict on both offences so there was no risk of injustice. Accused’s conviction for sexual assault and judicial stay on the count of sexual interference would be restored.

R. v. M.R.H. (2019), 2019 CarswellBC 2966, 2019 CarswellBC 2967, 2019 SCC 46, 2019 CSC 46, Karakatsanis J., Côté J., Brown J., Martin J., and Kasirer J. (S.C.C.); reversed (2019), 2019 CarswellBC 202, 2019 BCCA 39, Garson J.A., Harris J.A., and Savage J.A. (B.C. C.A.).

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