Case reflects lack of judicial experience with jury charges, says John Rosen
The Court of Appeal for Ontario ordered a new trial in a sexual assault matter, finding errors in the trial judge’s instructions relating to the assessment of witness credibility, a central element in the case.
In R. v. U.K., 2023 ONCA 587, the appellants argued that the trial judge erred in his instructions to the jury in four different ways. The case turned on two of them, and the court did not address the rest. The court found that the judge erred in his instructions on the capability of post-offence fabrication to constitute circumstantial evidence of guilt. It found the judge also erred in his instruction on the principles from R. v. W.(D.),  1 S.C.R. 742, a case which deals with assessing the credibility of an accused’s testimony.
John Rosen, who acted for one of the appellants, says the jury-charge errors reflect a systemic shift in criminal trials. The senior partner at Rosen and Company has been practising for 53 years. When he began, he says his trials were almost exclusively jury trials and dealt with a whole range of matters. To reduce the cost of criminal litigation, the federal government has since amended the Criminal Code so that many crimes have become hybrid offences. In a hybrid offence, the Crown can elect to proceed by summary judgment in the provincial court with a judge-alone trial or by indictment in the Superior Court, with the accused having the option of either a judge-alone trial or a jury trial.
Then the government eliminated preliminary hearings for many indictable offences, which made the Superior Court less attractive and led to more judge-alone trials in the provincial court, says Rosen. At the same time, the rules around offences such as sexual assault have become much more complex, and experienced lawyers do not want to leave the complicated rules up to a jury, he says.
Rosen says this has all led to much fewer jury trials and less jury-charge practice for judges.
“They don't have a lot of experience, and they tend to make mistakes,” he says.
The main issue in R. v. U.K., says Mark Halfyard, who represented the other appellant in the case, was that the judge left the impression with the jury that if they found the accused’s evidence unreliable or inconsistent, it could be fabricated and they could determine that the accused was more likely to be guilty.
“It's really dangerous if a jury jumps from the fact that they disbelieve an aspect of an accused’s evidence to actually finding that because they disbelieve parts of an accused evidence that they're more likely to have committed the offense,” he says. “It kind of turns the Crown's burden of proof on its head.”
In R. v. U.K., an Ontario court had convicted the two appellants, U.K. and R.P., of one count each of sexual assault. The incident in question occurred at a party in a hotel room. The Crown’s position was that the complainant did not consent to sexual contact with either appellant and, regardless, had lacked the capacity to consent due to intoxication. Both appellants said that the sex was consensual and that while she had been drinking, the complainant “appeared to be fine and was responsive.” The appellants said the complainant was an active participant in the sex but theorized at trial that she drank to intoxication but not incapacity, had consensual sex, became sick, and once an ambulance was called and her parents were notified, she fabricated the sexual assault out of embarrassment.
Two days after the alleged assault, the police contacted the appellants and requested that they provide statements in person. In their statements, both initially said they saw the complainant consume alcohol after the sexual activity and before she got sick. Later, in their police statements and in their trial testimony, they both amended that claim and said they had mixed up the timing.
In a conference before the jury charge, Crown counsel asked the trial judge to instruct the jury that, if they found the statements about the complainant drinking after the sexual activity to be deliberately fabricated, they could view those statements as circumstantial evidence of guilt. The Crown argued that the similarity of their statements and the fact that they both backtracked on them could be independent evidence of fabrication because it indicated they had conspired to mislead the police.
Trial counsel argued there was insufficient evidence for such an instruction.
The trial judge ultimately included a jury instruction on the issue. He told the jury that the Crown had submitted that the evidence was fabricated. The judge added that the police statements were similar, both accused had been together the day after the alleged assault when they returned to the hotel to collect their property, and they went to the police station to give their statements at the same time the next day. The judge told the jury to consider whether any of the evidence was fabricated after reviewing it, to consider whether there is independent evidence to establish the evidence was fabricated, and whether there is evidence within the relevant circumstances.
The instruction concluded with the advice that if the jury found the evidence was fabricated, they could use that fact as evidence of guilt.
While the Court of Appeal agreed that such a jury instruction was acceptable for the police statements, the failure of the trial judge to differentiate those statements from the appellant’s trial testimony – referring only to their “evidence” – was an error. There was no independent evidentiary basis for an instruction that the appellants had fabricated trial evidence because neither said at trial that the complainant had been drinking after their sexual encounter, said the court.
The appeal court found this error prejudicial because the instruction without evidence undermined the presumption of innocence and the Crown’s burden of proof by “allowing disbelief of the appellants’ trial evidence to be used as positive evidence of guilt.”
Aside from blurring the line between the police statement and trial testimony, the court found that the trial judge also committed four “significant and prejudicial” errors of omission in his instruction, which required a new trial.
The court also found that the trial judge erred in two ways on his instructions to the jury on the principles from R. v. W.(D.). First, the trial judge had improperly conflated the evidence of both appellants when they each were entitled to have the jury consider their individual cases on their own merits. Second, the judge conveyed to the jury that they could only have a reasonable doubt on the case against the appellants if they accepted the appellants’ evidence in its entirety.
Rosen says that the case is one of several recent appeals courts have allowed because the trial judges treated two or more accused as one unit. In a joint trial, the judge is supposed to present the case against each accused, and their defences, individually, he says.
“Maybe it's an effort to cut corners in their charge, but it's becoming almost routine that they give a charge that links the two accused as if they're joined at the hip… By joining the two, trial judges routinely run into problems and give the Court of Appeal a good reason to send things back for a new trial. And it's costing taxpayers millions of dollars.”