Case information
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38547
Her Majesty the Queen v. M.R.H.
(British Columbia) (Criminal) (As of Right)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2019-10-18 | Appeal closed | |
| 2019-10-17 | Transcript received, 54 pages | |
| 2019-10-10 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2019-10-10 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2019-10-09 |
Judgment on the appeal rendered, Ka Côt Br Mar Kas, The appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Number CA44346, 2019 BCCA 39, dated February 5, 2019, was heard on October 9, 2019, and the Court on that day delivered the following judgment orally: KARAKATSANIS J. — The appeal is allowed, substantially for the reasons of Mr. Justice Savage (2019 BCCA 39, 373 C.C.C. (3d) 464). As for the three additional issues raised by the respondent for the first time in this Court, we are not satisfied that they require a new trial. First, we are satisfied that no limiting instruction was required on the issue of character evidence, as there was no real risk of propensity reasoning in this case. Second, we are of the view that no limiting instruction was necessary regarding prior consistent statements, because the statements were elicited early in the trial, were relied upon by the defence and not by the Crown, and there was no real risk in the circumstances of this case that they would be used as self-corroboration. Finally, with respect to the interpretation of the phrase “single transaction” in s. 581(1) of the Criminal Code, R.S.C. 1985, c. C-46, we agree that the Crown practice of drafting a single count of an indictment to capture multiple distinct incidents creates the risk that the accused may be convicted without the jurors’ unanimous agreement on any one underlying incident. We leave for another day whether the law supports such a practice and whether jury unanimity is required in such circumstances. In essence, the jury in this case asked whether unanimity on the first incident was sufficient to convict. It is not necessary to deal with the issue in this case, because it is clear from the jury’s question and the response it received, that the jurors unanimously agreed that the first incident had been proven. Here, there is no risk of an injustice and the issue need not be considered (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22). Therefore, the appeal is allowed. The order of the Court of Appeal is set aside. We restore the respondent’s conviction for sexual assault and the judicial stay on the count of sexual interference. Allowed |
|
| 2019-10-09 |
Hearing of the appeal, 2019-10-09, Ka Côt Br Mar Kas Judgment rendered |
|
| 2019-10-09 | General proceeding, (Letter Form), Case Sensitivity Questionnaire | M.R.H. |
| 2019-10-09 | General proceeding, (Letter Form), Case Sentivity Questionnaire | Her Majesty the Queen |
| 2019-10-08 | Correspondence received from, (Letter Form), 2 reserved seats requested. | Her Majesty the Queen |
| 2019-09-24 | Notice of appearance, (Letter Form), Brent V. Bagnall, Roger P. Thirkell and Joseph M. Doyle will appear before the court. Mr. Bagnall will present oral arguments. | M.R.H. |
| 2019-09-18 | Notice of appearance, (Letter Form), Matthew Scott and Mary T. Ainslie, Q.C.will appear before the court. Mr. Scott will present oral arguments. | Her Majesty the Queen |
| 2019-08-07 | Notice of hearing sent to parties | |
| 2019-07-31 |
Appeal hearing scheduled, 2019-10-09 Judgment rendered |
|
| 2019-07-11 | Appeal perfected for hearing | |
| 2019-06-26 | Certificate (on limitations to public access), (Letter Form), 23B | M.R.H. |
| 2019-06-26 | Certificate (on limitations to public access), (Letter Form), 23A | M.R.H. |
| 2019-06-26 | Certificate of counsel (attesting to record), (Letter Form) | M.R.H. |
| 2019-06-26 | Respondent's record, (Book Form), Completed on: 2019-06-26 | M.R.H. |
| 2019-06-26 | Respondent's factum, (Book Form), Completed on: 2019-06-26 | M.R.H. |
| 2019-05-01 | Certificate (on limitations to public access), (Letter Form), 23B | Her Majesty the Queen |
| 2019-05-01 | Certificate of counsel (attesting to record), (Letter Form) | Her Majesty the Queen |
| 2019-05-01 | Appellant's record, (Book Form), (3 volumes), Completed on: 2019-05-01 | Her Majesty the Queen |
| 2019-05-01 | Appellant's factum, (Book Form), Completed on: 2019-05-01 | Her Majesty the Queen |
| 2019-03-28 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2019-03-20 | Letter acknowledging receipt of a notice of appeal, FILE OPENED | |
| 2019-03-06 | Certificate (on limitations to public access), (Letter Form), 23B | Her Majesty the Queen |
| 2019-03-06 | Certificate (on limitations to public access), (Letter Form), 23A | Her Majesty the Queen |
| 2019-03-06 | Notice of appeal, (Letter Form), Missing: Filing Fee (rec' 03/22/19), Completed on: 2019-05-03 | Her Majesty the Queen |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| M.R.H. | Respondent | Active |
Counsel
Party: Her Majesty the Queen
Counsel
600-865 Hornby Street
Vancouver, British Columbia
V6Z 2G3
Telephone: (604) 660-1126
FAX: (604) 660-1133
Email: matthew.scott@gov.bc.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 783-8817
FAX: (613) 788-3500
Email: robert.houston@gowlingwlg.com
Party: M.R.H.
Counsel
Vancouver, British Columbia
V6C 3A8
Telephone: (604) 687-4288
FAX: (604) 687-4299
Email: brent.bagnall@lss.bc.ca
Agent
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Summary
Keywords
Criminal law – Charge to jury – Whether the trial judge erred in law by (a) failing to adequately explain that the indictment charged two offences which covered a period of time during which two separate incidents were alleged to have occurred, (b) failing to clarify the question from the jury and give counsel an opportunity to make further submissions, (c) failing to correctly answer the question from the jury, and by (d) failing to re-instruct the jury on the issue of credibility.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(Publication ban in case)
The respondent, M.R.H., was convicted of sexual interference and sexual assault in relation to two discrete incidents involving his niece. The indictment set out two counts and each count encompassed the entire time period in which the two distinct events were alleged to have occurred. A majority of the Court of Appeal allowed the appeal and ordered a new trial. In its view, the trial judge erred in three respects. First, his charge to the jury was confusing in relation to the way in which the indictment was written. Second, in responding to a question posed by the jury, he engaged in a confusing colloquy with the foreperson and did not clearly answer the question. Third, the trial judge failed to provide further instructions on credibility, which was the main issue at trial, given that the jury’s question raised the issue of whether it could reject the complainant’s evidence about one of the incidents but accept her evidence about the other. Savage J.A., dissenting, would have dismissed the appeal.
Lower court rulings
Supreme Court of British Columbia
Respondent convicted of sexual interference and sexual assault
Court of Appeal for British Columbia (Vancouver)
CA44346, 2019 BCCA 39
Appeal allowed and new trial ordered
Memorandums of argument on application for leave to appeal
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Downloadable PDFs
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Related links
Factums on appeal
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If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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