CRIMINAL PROCEDURE - Trial judge’s duties - Charge or directions - Evidence of witnesses

Appeal by the accused from conviction for sexual interference. The Crown alleged the appellant sexually touched R, a pre-teenaged girl. The defence argued that R was a confused young girl who had been influenced and coached by her parents’ suggestion that the touching was sexual in nature when it was just innocent tickling. This theory relied heavily on the fact that after R disclosed the incidents in issue to her parents, they waited five months before reporting the matter to the police, and that the parents went to the police the day following a verbal confrontation between the appellant and R’s father. The appellant argued that evidence given by R’s mother with respect to other children feeling awkward around him was highly prejudicial and required the trial judge to take immediate remedial action by way of a mid-trial instruction. He argued the judge should have told the jury not only to disregard that evidence, but also why it should have been disregarded.

HELD: Appeal allowed. New trial ordered. Simply instructing the jury at the end of trial to ignore the evidence was insufficient. The jurors had the mother’s evidence in their minds when the appellant entered the witness box and it might have coloured their view of his testimony as it was given. Having decided to wait until the end of the trial to address the matter, it was incumbent on the trial judge to ensure that propensity reasoning did not seep into or taint the jury’s deliberation process. The jury should have been specifically instructed that it was not to rely on that evidence to conclude the appellant was a person of bad character who was, therefore, more likely to have committed the offence against R.

R. v. Veeken, [2017] B.C.J. No. 2436, British Columbia Court of Appeal, S.D. Frankel, N.J. Garson and D.C. Harris JJ.A., December 1, 2017. Digest No. TLD-December182017010