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PROCEDURE - Jury - Questions by jury - Trial judge’s duties

Wednesday, August 21, 2019 @ 7:09 AM  

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Appeal by the accused from convictions of sexual offences against VB. The appellant and the victim were related. She alleged that the appellant touched her inappropriately between 2005 and 2010. The appellant denied that the alleged conduct took place and challenged the credibility of the complainant and the reliability of her assertions. The appellant argued the trial judge erred in his responses to jury questions and in his charge to the jury.

HELD:  Appeal allowed. New trial ordered. The trial judge erred in providing the jury with transcripts of portions of the appellant’s post-arrest police interview on which he was cross-examined at trial, but which were not filed as exhibits, rather than playing the audio recording of the actual cross-examination of the appellant on those excerpts. The trial judge should have advised the jury that because the excerpts they requested were not made exhibits at trial, those excerpts were not part of the evidence and could not be provided to them for review in their jury room. The portions of the appellant’s out-of-court statement used for impeachment purposes were not filed as numbered exhibits, and thus, should not have been provided to the jury for review during deliberations. To send them to the jury room after the evidence portion of the trial was completed was essentially to permit the introduction of further evidence during deliberations. The trial judge also erred in exhorting the jury to reach a verdict without making it clear, once apprised of the looming unavailability of one juror to continue, that there was no time limit imposed on the deliberation. The number and substance of the questions asked by the jury supported a reasonable inference that the jurors were clearly troubled about this case and had difficulty recalling at least some aspects of the evidence of the appellant and the complainant. It was thus incumbent on the trial judge to make it clear to the jury that there was no time limit on their deliberations. The trial judge ought to have told the jury that the concerns of the juror who had commitments could and would be addressed later in the day should they not reach a verdict by then. The failure of the trial judge to address these issues with the jury in the circumstances of this case constituted an error that affected the fairness of the trial. In his charge to the jury, the judge failed to adequately relate the evidence to the issues and the position of the defence, so that the jury appreciated the value and effect of the evidence. As the credibility of the complainant was challenged, it was incumbent on the trial judge to ensure the jury’s understanding of the value and effect of evidence that tolled against the complainant’s credibility and the reliability of her account. A serial review of various aspects of the evidence adduced at trial was inadequate to this task.

R. v. J.B., [2019] O.J. No. 3645, Ontario Court of Appeal, P.S. Rouleau, D. Watt and G. Huscroft JJ.A., July 11, 2019. Digest No. TLD-August19019006