R. v. R.G.S.

2023 BCCA 52 R. v. R.G.S.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. R.G.S., 2023 BCCA 52 Date: 20230207 Docket: CA47532 Between: Rex Respondent And R.G.S. Appellant Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4(2.2) of the Criminal Code, restricting the publication, broadcasting or transmission in any way of evidence and information that could identify the complainants, referred to in this judgment by the initials A.P. and M.P, and witnesses, referred to in this judgment by the initials J.P. and E.S. Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett The Honourable Madam Justice Horsman On appeal from: An order of the Supreme Court of British Columbia, dated December 10, 2020 (conviction) (R. v. R.G.S., Vancouver Docket 29250). Counsel for the Appellant: G. Arnet-Zargarian M. Iyengar Counsel for the Respondent: L.Y. Bantourakis Place and Date of Hearing: Vancouver, British Columbia September 20, 2022 Place and Date of Judgment: Vancouver, British Columbia February 7, 2023 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice Horsman Summary: This is an appeal from the appellant's conviction by jury of two counts of sexual assault and sexual interference of a child under the age of 16. On appeal, the appellant argues that the trial judge

erred in admitting evidence of uncharged incidents involving the complainant A.P. He also alleges errors with respect to the adequacy of the jury instructions and invites the Court to reconsider the issue of jury unanimity. Held: Appeal dismissed. The trial judge was correct in finding the evidence of discreditable conduct was relevant based on the relationship between the appellant and A.P. The trial judge did not err in applying the framework for relevance and in assessing the moral prejudice and reasoning prejudice that could arise from the evidence. No trial unfairness resulted from the admission of the evidence. The jury instructions with respect to the incidents of discreditable conduct were adequate and clear; they were also made in consultation with counsel. This is not the appropriate case to re-assess the jury unanimity requirement; therefore, the request for a five-justice division is declined. Table of Contents Paragraph Background [4] Uncharged discreditable conduct with A.P. [8] Issues [20] Discussion [22] Did the trial judge err in admitting evidence of discreditable conduct? [22] A. Relevance [26] B. Exclusionary rule [35] Moral prejudice [39] Reasoning prejudice [45] C. Exercise of Judicial Discretion to Admit or Exclude the Evidence [50] The Car Incident [56] The Jury Instructions [64] Should this Court order a five-justice division to revisit

G.L.M? [74] Conclusion [96] Reasons for Judgment of the Honourable Madam Justice Bennett: [1] On December 10, 2020, a jury found R.S. guilty on charges of sexual assault and sexual interference in regard to two children under the age of 16. The trial judge entered conditional stays of proceedings on the two sexual assault counts pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729, 1974 CanLII 14, and recorded convictions on the two sexual interference counts. R.S. was sentenced to a total of seven years' imprisonment on May 25, 2021. This is an appeal from the sexual interference convictions. [2] The appeal engages the issue of the admissibility of evidence of an accused's discreditable conduct outside or extrinsic to the date alleged in an indictment. It also raises the issue of whether this three-justice division should order this appeal reheard by a five-justice division, so that the Court can reconsider a previous decision dealing with jury unanimity when, as in this case, a count alleges multiple incidents. [3] I would decline to order a rehearing before a five-justice division and dismiss the appeal. Background [4] The complainants, A.P. and M.P., are sisters and R.S.'s nieces. Their mother and R.S.'s wife are sisters. The family was close and spent a great deal of time together. [5] The charge in relation to A.P. arose from one incident. The date of the offence in the

indictment was between June 1, 2016 and September 30, 2016. She testified that she had slept over at R.S.'s home during the summer before she entered grade six. His wife was not at home. During this visit, R.S. told her to go into his bedroom and demanded A.P. take off her clothes, rubbed his penis on her vagina, forced her to touch his penis, and placed his mouth on her vaginal area. At the time of this incident, R.S.'s son, E.S., was in the living room. A.P. made several other allegations of misconduct against R.S., discussed in more detail below, but that conduct did not result in charges. [6] M.P. also alleged that R.S. sexually assaulted her. She testified that there were approximately 100 to 200 instances of sexual touching, and that she expected this to occur whenever she visited R.S. The counts were charged between September 1, 2008 and July 1, 2017. Generally, the abuse took the form of R.S. touching M.P.'s breasts and vaginal area, but some incidents were described with more specificity. The trial judge accepted five specific instances when interpreting the jury's verdict, as being established beyond a reasonable doubt: an instance when R.S. placed M.P.'s hand on his penis while they shared a bed with R.S.'s wife and son, when M.P. was five or six years old; an instance when R.S. sexually touched M.P. while watching television, when she was likely in grade four; an

instance when R.S. bit M.P.'s breast and caused an injury, when she was in grade five or later; an instance when R.S. licked and placed his mouth on M.P.'s vagina, when she was in grade five; and, an instance when R.S. touched M.P.'s breasts while they sat on the couch in her living room, when she was in grade seven or eight. [7] R.S. testified at trial, denying that he had touched either child in a sexual manner. E.S testified that he never saw his father engage in sexual conduct with either A.P. or M.P. Uncharged discreditable conduct with A.P. [8] A.P. testified that she was scared when R.S. wanted her to go into the bedroom because of things he had done to her in the past. The Crown applied to have two specific incidents of uncharged discreditable conduct admitted before the jury, along with general attempts to touch and kiss her. In reasons indexed as 2020 BCSC 1722 ("Ruling on Voir Dire 1, Part 2"), the judge admitted the evidence. [9] The proposed evidence was summarized by the judge at para. 2: [2] My previous reasons do not discuss AP's uncharged discreditable conduct allegations, also called extrinsic misconduct evidence. Again and in summary, the charged conduct AP alleges or the main allegation is that during the summer between grades five and six, meaning sometime between June and September 2016, RS brought her into his bedroom, yelled at her, told her to take off

her clothes, removed her clothes as well as his own, kissed various parts of her, including her cheek and neck, touched her chest over and under her clothes, and touched her vagina with his penis over her underwear and with his finger over and under her underwear. The uncharged allegations include: a) An incident prior to the main allegation in the summer of 2016 that occurred in the living room of AP's home. RS was there to pick up AP's cousin, [E.S.]. While AP's brother and [E.S.] were talking, playing together and not paying attention, RS touched her shoulders, tried grabbing her, tried kissing her cheek and neck, and touched her chest on top of her clothes with his hands, as the two of them were sitting on the couch. AP said she did not remember how the incident ended but she thought she walked away because she was scared and, "[she] didn't have the courage to tell [her] parents until 7th grade". b) An incident after the main allegations that occurred in RS's living room when AP's brother was in grade three. [E.S.] was also present. The two of them were watching television. AP was also doing homework. She alleges RS approached her and started touching her neck and shoulders over her clothes and kissing her shoulders, neck and lips as she and [E.S.] sat on the couch. AP also stated that RS kept on touching her and that she "think[s] [E.S.] knows" but he did not say anything

and moved to a different couch. c) Ongoing attempts by RS to kiss and touch AP. She described RS as "continuously" or "always" trying to touch and kiss her. Asked how many times this happened, she said she did not remember but also that he did it "often". [10] The judge's reasons for admitting the evidence are set out at paras. 16-18: [16] AP's allegations of uncharged misconduct are relevant and material to the nature of the relationship between AP and RS at the time of the alleged offences and therefore the context in which the alleged offences occurred. Putting it differently, the uncharged misconduct allegations are significantly probative of the central issue of AP's credibility. While I agree with defence counsel that alleging additional incidents does not in itself make AP more or less credible, in the absence of uncharged conduct evidence, the jury would be left with the inaccurate and misleading impression that no sexual touching is alleged prior to the main and much more serious charged conduct or afterward. Such an impression could significantly impact the jury's assessment of the plausibility and reasonableness of AP's allegations of charged conduct. Similarly, while AP has not stated her delay in disclosing the charged conduct was due to the uncharged allegations, she was and remains a child and whether or not the defence challenges her delayed disclosure, or

asserts she is less credible as a result, it remains a factor that the jury may consider. The uncharged conduct she alleges, if accepted, provides important context for the jury in considering why she did not tell anyone about the alleged conduct that is charged for as long as she did. Furthermore, although it is not clear what claims the Crown may have to rebut apart from fabrication, claims of fabrication typically include a motive to lie. Again, the alleged uncharged conduct both before and after the alleged charged conduct provides important context for assessing any motive to lie on the part of AP asserted by RS. [17] I turn now to the assessment of prejudice. It is clear that AP's extrinsic misconduct evidence is prejudicial. Most significant is the potential for moral prejudice. I agree with the Crown, however, that the risk of propensity based reasoning is much attenuated here because the extrinsic misconduct evidence concerns other incidents alleged by and involving AP, rather than another person, and because those incidents are much less serious than the charged incident although the difference is not as stark as it was in A.L. and the ratio of charged to uncharged incidents entirely different. [18] The same can be said about reasoning prejudice. The distinction between the charged conduct and the extrinsic misconduct evidence is clear. This minimizes the risk of

confusion and distraction, although it may result in the need for some additional evidence. [11] The trial judge concluded that the probative value of the evidence exceeded its prejudicial effect and that an appropriate limiting instruction to the jury would mitigate the danger of misuse of the evidence. [12] On November 4, 2020, A.P. made a new disclosure in her interview with Crown counsel. A.P. alleged a further incident occurred after the charged event when she was in grade six. She says she was waiting in a car for M.P. outside M.P.'s school with R.S., her brother J.P., and E.S. She said R.S. got into the back seat of the car with her and kissed her neck and chest and touched her chest under her shirt and bra (the "Car Incident"). E.S. and J.P. were in the front seat. [13] R.S.'s counsel was informed of the new disclosure the next day. The Crown also advised counsel that it intended to apply to tender the newly disclosed evidence at trial. [14] After the jury selection, but before the ruling on the admissibility of the evidence relating to the Car Incident, the judge asked Crown counsel to consider amending the Indictment to include all of the uncharged allegations in relation to A.P. She expressed her concern regarding the jury instructions: THE COURT: I think you'll recall that I urged the Crown to consider amending the indictment with respect to the time period. I ask

you again to consider that and -- but there is this additional legal issue about the significance of time in a count that charges an ongoing offence. CNSL J. LAWTON: Yes. THE COURT: But because we have a jury, I think it will be very confusing to on the one hand instruct them that they only have to find beyond a reasonable doubt, each of them, that one incident occurred within a particular timeframe and not -- they don't have to agree unanimously on all of the allegations within a timeframe, and that time is not an essential ingredient, and then give all these instructions on extrinsic misconduct evidence. It's very confusing and I -- I -- you -- I don't know why the Crown is -- is opposed or resistant to amending the indictment [15] The Crown eventually made the application requested by the judge. In the Ruling on the Application to Amend the Direct Indictment (indexed as 2021 BCSC 1593), the judge accepted that because the Attorney General filed a direct indictment in the case, it could not be amended to introduce an offence that was different from the one that the Attorney General gave their consent for the direct indictment: at para. 16, citing R. v. Terezakis, 2006 BCSC 139, R. v. Falkenberg (1974), 16 C.C.C. (2d) 525 (Ont. C.A.). The judge dismissed the application to amend. [16] The judge also denied Crown counsel's application to tender the evidence of the Car Incident

because its prejudicial effect outweighed its probative value: 2021 BCSC 1594 ("Ruling on Crown's Application to Adduce Additional Extrinsic Misconduct Evidence"). The judge noted that the allegation was more serious than the ones described in the earlier Ruling on Voir Dire 1, Part 2 that were found admissible. [17] Following these pre-trial applications, the trial commenced and A.P. testified to the incident that was the subject of the charge and the two incidents that had been permitted by the earlier ruling. The trial judge instructed the jury mid-trial with respect to propensity reasoning. [18] During an extensive three-day cross-examination, defence counsel questioned A.P. regarding the uncharged incidents. The following transpired: Q. Okay. So you're saying there were separate times when he touched you when [J.P.] and [E.S.] were both around? A Yes. Q Okay. And you said there was one at his house? A There was one at his -- the incidents that I remember, there was one at his house, one at my house and another time when I was in the car. Q You -- you told the police about a time at your house, right? [Emphasis added.] [19] Defence counsel sought a mistrial, and alternatively, the opportunity to cross-examine A.P. on the Car Incident to further test her credibility. The judge was of the view that "a clear and sharp mid-trial instruction along with further instructions at

the end of the trial" was the most effective way to address any prejudice that arose from the utterance during cross-examination and declined to order a mistrial: 2021 BCSC 1597 at para. 14 ("Mistrial Application Ruling"). She did, however, permit defence counsel to question A.P., which he did -- extensively. He elicited the details of the Car Incident that had been previously ruled inadmissible. Issues [20] R.S. submits that the trial judge erred in admitting the evidence of the uncharged conduct against A.P. on the counts relating to her. In addition, he says the evidence the judge ruled inadmissible was inadvertently tendered before the jury, cumulatively resulting in an unfair trial. [21] The second error alleged arises in relation to the M.P. counts. The judge instructed the jury that while they had to be unanimous that R.S. committed at least one incident of sexual interference or sexual assault against M.P., they did not have to be unanimous with respect to which one(s). That instruction is consistent with the decision of this Court in R. v. G.L.M., 1999 BCCA 467. R.S. submits the time is ripe to revisit that line of decisions and he asks this Court to order a rehearing of this appeal by a five-justice division. Discussion Did the trial judge err in admitting evidence of discreditable conduct? [22] The discussion that follows addresses the ruling in relation to the

discreditable conduct the judge found admissible. I will address the issue relating to the Car Incident later. [23] R.S. contends that the judge erred by failing to apply the framework for the admission of discreditable conduct as outlined in R. v. Handy, 2002 SCC 56. In her Ruling on Voir Dire 1, Part 2, the judge took the view that the Handy framework applied to similar fact evidence, and relied on R. v. A.L., 2020 BCCA 18, leave to appeal ref'd, [2020] S.C.C.A. No. 83. [24] The Supreme Court recently addressed the framework for the admissibility of evidence in R. v. Schneider, 2022 SCC 34. The framework is the same regardless of whether the issue is similar fact, discreditable conduct, hearsay and so on. [25] The Court reiterated the three-part test trial judges must consider for the admission of all evidence: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise their discretion to exclude the evidence (Schneider at para. 36). A. Relevance [26] The first step is ascertaining relevance. Relevance is determined "by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely. This standard applies to all evidence in criminal trials" (Schneider at para. 45). The determination of relevance is a question of law and reviewable on a correctness

standard (Schneider at para. 39). [27] Relevance is determined by applying logic and human experience (Schneider at para. 39). [28] R.S. submits that the judge failed to identify "a material issue to which the uncharged misconduct was relevant". In other words, he submits that the judge failed to identify how the evidence was relevant to a fact in issue. [29] The threshold for relevance is low and judges can admit evidence that has modest probative value (Schneider at para. 39). [30] In Ruling on Voir Dire 1, Part 2 (at para. 16), the trial judge reasoned that the evidence was relevant and material to the nature of the relationship between R.S. and A.P. at the time of the alleged offences and the context in which it occurred. Specifically, the uncharged misconduct allegations were probative of the issue of A.P.'s credibility, which was a factor the jury may still consider. She also found the uncharged conduct was part of the context for assessing any motive to lie on the part of A.P. that R.S. had asserted. [31] It is important to recognize that the framework places the weighing of the probative value of the evidence and its prejudicial effect at the third stage of the analysis. At the first stage of the analysis, the question is whether the evidence is relevant to a fact in issue. The issue on the A.P. charge was whether the allegations were true, and that turned on the

credibility of A.P. [32] General issues such as "credibility", "narrative" or "nature of the relationship" are not "portals" to propensity evidence about uncharged similar facts (R. v. M.R.S., 2020 ONCA 667 at para. 72, citing R. v. Gareau, 2016 NSCA 75 at para. 51). However, the judge here did not simply rely on generalized issues. She identified, correctly in my view, why, for example, the nature of the relationship between A.P. and R.S. was relevant. The first incident, as A.P. explained, was evidence of why she was afraid of R.S., and why she anticipated what might occur in the bedroom during the charged incident. As the trial judge noted (at para. 16), in the absence of the uncharged conduct evidence, the jury would be left with the inaccurate and misleading impression that no sexual touching was alleged to have occurred prior to the more serious charged conduct. Such an impression could have a distorting effect on the jury's assessment of the plausibility and reasonableness of A.P.'s evidence of the charged conduct. [33] Applying logic and the human experience, the evidence of repeated sexual touching and sexual assaults against A.P. was probative of her credibility in terms of how the contact started and the fact that it continued over an extended period of time (Handy at para. 42). [34] R.S. submits that the judge erred in considering the evidence as relevant to her

delayed disclosure (A.P. disclosed the incidents to her mother in September 2017, and M.P. disclosed the same day when questioned by her mother). He says that he did not raise delayed disclosure as an issue in relation to the uncharged misconduct and A.P.'s credibility. He also notes that the Crown did not try to use the uncharged misconduct to explain the delayed disclosure. Given that, in my view, the judge was correct in finding the evidence relevant based on the nature of the relationship between A.P. and R.S., I do not need to consider whether she erred by considering the issue of delayed disclosure in terms of admitting the evidence. B. Exclusionary rule [35] The next issue is whether the evidence is subject to an exclusionary rule. Unequivocally, the answer here is yes. Evidence of discreditable conduct outside the parameters of a charge is presumptively inadmissible. The evidence is inadmissible on the basis that an accused "has only to answer to the specific charge contained in the indictment" (Handy at para. 43). The evidence of disposition or propensity is "exceptionally admissible" (Handy at para. 51). [36] In Handy, the Court summarized the general exclusionary rule as follows: [72] Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law. Discreditable disposition or character evidence, at large, creates nothing but

"moral prejudice" and the Crown is not entitled to ease its burden by stigmatizing the accused as a bad person. The defence of "innocent association" in B. (F.F.) was simply another way of expressing the denial by an accused of an element of the offence. The evidence of his prior discreditable conduct of a distinctive and particular nature, was considered to be strongly probative of specific issues in the case. Thus read, B. (F.F.) is quite consistent with B. (C.R.), and should not be interpreted as a rival "two-step" variant of the test. [Emphasis in original.] [37] The issue of whether evidence falls within an exception from the general exclusionary rule is a question of law that is reviewed on a correctness standard (Schneider at para. 58). [38] Thus, evidence tendered solely for the purpose of showing that an accused was a bad person or had a propensity to commit crime is not admissible. The risk in adducing the evidence raises moral prejudice and reasoning prejudice. Moral prejudice [39] Moral prejudice is the risk of an unfocussed trial and a wrongful conviction arising from "the forbidden chain of reasoning [ ] to infer guilt from general disposition or propensity" (Handy at para. 139). In this case, the judge concluded that the risk of propensity-based reasoning was much attenuated here because the evidence did not relate to a third party, but to A.P., and those

incidents were less serious than the incident in the count charged: Ruling on Voir Dire 1, Part 2 at para. 17. [40] R.S. raises a number of points with respect to the question of moral prejudice that he says the judge overlooked. [41] The first point that was overlooked, he says, is the impact of moral prejudice not only on the counts relating to A.P. but also the counts relating to M.P. He submits that the evidence could bolster the jury's evaluation of the likelihood of the M.P. counts. He submits that the judge failed to consider that aspect of moral prejudice. I note, parenthetically, that this submission was made to the judge on the question of reasoning prejudice, not moral prejudice, as it is now argued. [42] While the judge did not specifically advert to the issue of cross-contamination of counts with respect to the conduct in relation to A.P., she did advert to the importance of correct jury instructions in terms of attenuating any prejudice. [43] The issue of whether the instructions were sufficient will be addressed below. [44] In my view, the judge did not misapply the test for moral prejudice in the context of this case. Reasoning prejudice [45] Reasoning prejudice arises when the jury is distracted from the issues at hand because they must consider multiple incidents rather than the offence charged (Handy at para. 144). I would add, as the judge recognized when

she asked the Crown to amend the indictment, that the charge to the jury may become confusing and complicated -- particularly here, where there was a second complainant with multiple incidents contained within the charge. [46] The judge concluded that there were sufficient safeguards to consider admitting the evidence. [47] R.S. contends that the judge misunderstood what was meant by "reasoning prejudice". He submits that the judge focussed only on whether the jury would understand the distinction between the charged and uncharged conduct. The judge considered that distinction, but she also put the issue into the context of reasoning prejudice. She identified the factors -- same complainant, less serious conduct -- as factors that would also minimize the risk of the jury being distracted or confused about the additional evidence. In my view, she did not err in her assessment of the degree of reasoning prejudice. It is important to put her analysis into context. She was addressing the prejudice in relation to two brief incidents involving the same complainant and conduct of a less serious nature than the conduct that the jury had to consider whether the Crown had proven beyond a reasonable doubt. [48] R.S. argues that the judge failed to address specifics of his argument. A judge is not required to address every aspect of an argument if the reasons, when read as a whole, respond

to the issues raised (see R. v. J.M.H, 2011 SCC 45 at para. 32). [49] The judge carefully reviewed the law and the position of the parties. While her final analysis on the issue of prejudice was brief, it cannot be said that she applied the wrong framework or overlooked issues. In my opinion, her analysis on those issues was sufficient and without error. C. Exercise of Judicial Discretion to Admit or Exclude the Evidence [50] The third step in the analysis focusses on the balancing of the probative value of the evidence and its prejudicial effect. Probative value relates to the degree or extent of relevance to the trial issues and the strength of the inference that can be drawn from the evidence. The prejudicial effect relates to the likelihood that the jury will misuse the evidence (Schneider at para. 60). The danger of the potential for propensity reasoning cannot be understated. On the other hand, the judge may consider how the prejudicial effect of the evidence can be attenuated by a proper jury instruction (Schneider at para. 61). [51] However, the process is not that of weighing one against the other. As articulated in Handy at paras. 148-149: [148] One of the difficulties, as McHugh J. pointed out in Pfennig, supra, at p. 147, is the absence of a common basis of measurement: "The probative value of the evidence goes to proof of an issue, the prejudicial effect to the

fairness of the trial." The two variables do not operate on the same plane. [149] As probative value advances, prejudice does not necessarily recede. On the contrary, the two weighing pans on the scales of justice may rise and fall together. Nevertheless, probative value and prejudice pull in opposite directions on the admissibility issue and their conflicting demands must be resolved. [52] As noted in Schneider at para. 59: [59] Finally, judges must determine whether they should exercise their discretion to exclude evidence by balancing probative value against prejudicial effect. Judges sitting with juries should consider the extent to which any prejudicial effect can be attenuated by appropriate instructions to the jury as to the use to which the evidence can properly be put. In addition, evidence can be excluded where there was a significant unfairness associated with obtaining it, such that it would render the accused's trial unfair (Mohan; Paciocco, Paciocco and Stuesser, at pp. 47-48; Lederman, Fuerst and Stewart, at 2.75-2.77; Vauclair and Desjardins, at pp. 905-6). No such consideration arises in the circumstances of this case. [53] The balancing of whether the prejudicial effect of the evidence is outweighed by the probative value is an exercise of discretion by a trial judge and the decision is reviewed with deference (Schneider at para. 62). [54] The trial judge's

analysis of whether the evidence of discreditable conduct should be admitted is contained in her analysis of the degree of prejudice caused by the evidence. She was alive to the prejudicial nature of the evidence and the danger that the jury could improperly use the evidence. She concluded that proper jury instructions would minimize the prejudice caused by the evidence, and she found that the probative value of the evidence outweighed its prejudicial effect. [55] In summary, in my view, the trial judge did not apply the wrong legal framework to the admissibility of the evidence. She was not required to apply a strict or formulaic test. What was required was for the judge to identify the relevancy and probative value of the evidence; to consider the prejudice arising from the admission of the evidence; and finally, to determine whether the probative value of the evidence was outweighed by its prejudicial effect. The judge addressed all those points in her reasons in arriving at her conclusion. No error in her analysis has been demonstrated. The Car Incident [56] I turn to the issue of the Car Incident and whether the admission of that evidence caused an unfair trial, either on its own or cumulatively with the admission of the other evidence. This analysis will engage the steps taken by counsel and the content of the jury instructions. [57] R.S. submits that what unfolded during

the trial points to why the evidence was highly prejudicial and overcame any probative value. For example, A.P., when describing the incidents, added a detail (that R.S. touched her under her shirt), she talked about a "routine of abuse", and she referenced an incident in a car. R.S. submits that in total, the admission of that evidence made the trial unfair. [58] I will first address the issue of the utterance by A.P. in relation to what she says occurred in the car while waiting for M.P. [59] That evidence had been ruled inadmissible by the judge. She concluded that the prejudicial effect of the evidence outweighed the probative value because it was more serious conduct, and she was concerned about the cumulative effect of the evidence increasing moral reasoning prejudice. [60] The Crown did not avert to it during direct examination. A.P. made a brief reference to the Car Incident during cross-examination. No details of what occurred were divulged at the initial utterance. A mistrial application ensued. The judge, correctly in my view, believed "a clear and sharp mid-trial instruction along with further instructions at the end of the trial" would address any prejudice arising from A.P. misspeaking: Mistrial Application Ruling at para. 14. [61] Witnesses are often unpredictable and blurt out things during testimony that should not be heard by the jury. Sometimes the utterances

are so serious that only a mistrial will resolve the prejudice flowing from such occurrences. However, in many cases, including this one, the utterance is minimal or of a nature that a clear and quick mid-trial instruction to the jury will resolve any prejudice. Sometimes that instruction will need to be repeated in the final instruction. Sometimes it is better not to refer to the evidence again. Those are matters within the discretion of the trial judge. [62] In this case, however, defence counsel (who is counsel on this appeal) opted for a different strategy. At the trial he submitted that it would be better if he were given an opportunity to explore the details of the Car Incident in cross-examination because perhaps in his mind it was so implausible that the jury would disbelieve it and all of A.P.'s evidence would be tainted. That strategy, however sound, was not successful. It is not our role to second guess counsel's strategy unless squarely an issue in the appeal (see for example, R. v. Anderson, 2014 SCC 41 at para. 59). However, it does not lie in the words of counsel to seek a finding of error when the prejudicial evidence was admitted at his behest as part of the defence strategy: see R. v. Calnen, 2019 SCC 6. Had the trial judge's suggestion been followed, there would be no basis to complain of error. It cannot be said, in the circumstances of this case, that an

error or unfair trial has occurred because the judge permitted the questioning insisted upon by the defence. [63] The conclusion that no unfairness occurred because of the eliciting of the Car Incident addresses the question of whether there was a cumulative unfairness because of the admission of the discreditable conduct. The answer is no. The evidence was properly admitted. The Jury Instructions [64] The final question in relation to this ground is whether the jury instruction in relation to the discreditable conduct was adequate. [65] The judge took a collaborative approach to crafting the jury instructions, consulting with counsel every step of the way. [66] At the start of the trial, the judge said this to the jury: Further I may instruct you at some points to disregard evidence presented in this courtroom, and if I do so, it is your duty to do so. Sometimes certain evidence can only be used for a specific purpose. If that happens in this case, I will tell you how you may use the particular evidence in deciding the case. You must consider the evidence only for the purpose I describe. You must not use it for any other purpose. [67] The first mid-trial instruction in relation to propensity evidence was given during A.P.'s testimony: And then finally, there is another type of evidence I wanted to flag for you and - and that is that you heard [A.P.] testify yesterday that

[R.S.] kissed her and touched her body on two separate occasions, aside from the alleged incident that gives rise to the offences in Counts 1 and 2 of the indictment. At the end of the trial I will give you instructions about how or for what purpose you can use her evidence about the - what I will call the uncharged alleged incidents. What you need to know now is how you must not use that evidence. You must not conclude from this testimony that [R.S.] is a person of bad character and therefore more likely to have committed the offences he is charged with. Also, you must not use this evidence to punish him for the uncharged conduct by finding him guilty of the offences that he is charged with, and again I'll have more to say about that in my final instructions. [68] The second mid-trial instruction was given after A.P.'s testimony and reminded the jury of this first instruction: So, members of the jury, I have another instruction for you. It's very similar to one that I gave you earlier on in [A.P's] evidence, so I'm just going to read it to you, okay?: So during cross-examination, you heard [A.P.] give further testimony about some incidents involving [R.S.] that are not the subject of the offences that he's charged with. So, again, at the end of the trial I will give you instructions about how or for what purpose you can use [A.P.'s] evidence about the uncharged alleged

conduct, but I want to remind you now that - of what I said to you earlier which is that you must not conclude from this testimony that [R.S.] is a person of bad character, and therefore more likely to have committed the offences he is charged with, and also, you must not use this evidence of [A.P.] about things that he's not charged with to punish him by finding him guilty of the offences that he's charged with. [69] The final instructions included limiting instructions on cross-count reasoning: [R.S.] is charged with four offences. The Crown must prove the essential elements of each of the charged offences beyond a reasonable doubt. In general, each charge should be considered separately to determine if the evidence in relation to that charge proves the accused's guilt beyond a reasonable doubt. However, Counts 1 and 2 charge [R.S.] with sexual interference and sexual assault of [A.P.] in relation to the same alleged incident. Similarly, Counts 3 and 4 charge [R.S.] with sexual interference and sexual assault of [M.P.] in relation to the same multiple alleged incidents. Because Counts 1 and 2 are based on the same alleged incident, you will consider the same evidence in deciding whether the Crown has proved the essential elements of both sexual interference and sexual assault of [A.P.] beyond a reasonable doubt. Similarly, because Counts 3 and 4 are based on the same alleged

incidents, you will consider the same evidence in determining whether the Crown has proved the essential elements of both sexual interference and sexual assault of [M.P.] beyond a reasonable doubt. You must not, however, use the evidence regarding the alleged incident involving [A.P.] that [R.S.] is charged with in Counts 1 and 2, or your conclusions about that evidence, to infer that [R.S.] is a person of bad character and therefore more likely to have committed the offences charged in Counts 3 and 4. In the same way, you must not use the evidence regarding the alleged ongoing incidents involving [M.P.] that [R.S.] is charged with in Counts 3 and 4 to infer that [R.S.] is a person of bad character and therefore more likely to have committed the offences charged in Counts 1 and 2. Further, you must not assume that just because you conclude [A.P.] or [M.P.] is telling the truth that the other must be telling the truth as well. Similarly, do not assume that just because you conclude that [A.P.] or [M.P.] is not telling the truth that the other is not telling the truth also. Again, you must assess the credibility of each witness separately based on the instructions I have given you. I remind you that you must not convict [R.S.] of any count unless you are satisfied that the Crown has proven his guilt on that count beyond a reasonable doubt. [70] The trial judge added further

admonitions against propensity reasoning: Regarding Counts 1 and 2, you will need to carefully consider the evidence of [A.P.] and [R.S.] in the context of the evidence as a whole, in deciding whether the Crown has proved beyond a reasonable doubt that [R.S.] sexually interfered with and sexually assaulted [A.P.] during the incident she described in his bedroom while they were alone during a sleepover, in the summer between Grades 5 and 6 in 2016. In addition to the charged incident, [A.P.] testified about other minor incidents of sexual touching, all of which [R.S.] denied. I remind you that you must not use [A.P.'s] evidence about the uncharged sexual touching to conclude [R.S.] is more likely to have committed the charge incident, but you may consider that evidence in understanding the relationship between the two at the time of the alleged offences, her response, and in assessing her credibility. Again, you may believe some, none or all of each of their evidence. [71] There was no objection to the charge to the jury. No issue is taken on appeal with the content of the instructions on this issue, save the submission that the trial judge failed to specifically instruct the jury that it could not use the discreditable conduct in relation to A.P. on the M.P. counts. [72] I can address the last point briefly. Defence counsel did not ask the trial judge for a specific

instruction. That is no doubt because when the instructions are considered as a whole, it is clear that the evidence could only be used in relation to the A.P. counts. [73] I would not give effect to this ground of appeal. Should this Court order a five-justice division to revisit G.L.M? [74] Appeals in this Court are generally heard by a three-justice division. Under the doctrine of stare decisis, decisions by three-justice divisions are, with limited exceptions, treated as binding precedent. Outside those exceptions, none of which apply here, it has long been this Court's policy that a decision by a three-justice division can only be overruled by a five-justice division: Bell v. Cessna Aircraft Co. (1983), 149 D.L.R. (3d) 509 at para. 6 (B.C.C.A.); R. v. Tran, 2014 BCCA 343 at para. 71. [75] R.S. submits that the trial judge erred in her instructions with respect to unanimity. The trial judge instructed the jury as follows: Any verdict you reach for each count must be unanimous. Unless you are unanimous in finding [R.S.] guilty, you cannot return a verdict of guilty, nor can you return a verdict of not guilty unless you agree unanimously that he is not guilty. Although this is the case for each count, because Counts 1 and 2 relate to the same incident, I would expect your verdicts for Counts 1 and 2 to be the same. Similarly, because Counts 3 and 4 relate to the same ongoing

incidents, I would expect your verdicts for Counts 3 and 4 to be the same. Although your verdict for each count must be unanimous, the path that each of you takes, that is the evidence each of you relies on to reach that conclusion, is not required to be the same. You may all be satisfied of [R.S.'s] guilt beyond a reasonable doubt even though individually you have different views of the evidence. For Counts 3 and 4, this also means that you are not required to be unanimous about which incident or incidents occurred. Instead, each of you must be satisfied beyond a reasonable doubt that [R.S.] committed at least one incident of sexual interference or sexual assault. Similarly, all of you may have a reasonable doubt about his guilt, but not agree why. It does not matter as long as your verdict is unanimous. Sometimes a jury may be unable to reach a verdict. Jurors have the right to disagree. You should make every effort to reach a verdict, however. You are entitled to disagree if you cannot reach a unanimous verdict after a sincere consideration of the facts and the law and in open discussion with your fellow jurors. [76] That instruction was in accordance with this Court's decision in G.L.M., where the majority held at para. 35: the practice in Canada, to date, has been not to require a "limiting instruction" on the question of juror unanimity when dealing with a count composed

of a single transaction made up of on-going multi-incidents. [77] The issue arises in cases where there are multiple incidents alleged over a period of time but charged in one count as one transaction. That is how the charge with respect to M.P. was in the indictment. [78] On August 3, 2022, R.S. applied for a five-justice division in accordance with Rule 43 of the Court of Appeal Rules, B.C. Reg. 120/2022: Having appeal heard by more than 3 justices 43 (1) A party may request that an appeal be heard by more than 3 justices by doing the following at least 6 weeks before the appeal hearing date: (a) submitting a written request stating the reasons for the request to the registrar; (b) serving on each party a copy of the written request. (2) A party may oppose a written request under subrule (1) by doing the following not more than 5 days after being served the written request: (a) submitting a written response to the registrar; (b) serving on each party a copy of the written response. [79] That request was refused. The request for a five-justice division was renewed at the hearing of this appeal. That decision was reserved. I note that an initial refusal to order a five-justice division does not oust the jurisdiction of a three-justice division to make such an order, as during the course of an appeal it may become clear that a five-justice division is warranted. [80] The main

reason R.S. requests a five-justice division is because he wants this Court to revisit its decision in G.L.M on jury unanimity. R.S. fully argued why G.L.M. should no longer be followed as part of his submission for a five-justice division. He highlighted the importance of jury unanimity, citing a number of authorities that emphasize the importance of the process of collective reasoning by a jury (Ramos v. Louisiana, 140 S. Ct. 1390 (U.S.S.C., 2020), R. v. G. (R.M.), [1996] 3 S.C.R. 362 at para. 13, 1996 CanLII 176, R. v. Sherratt, [1991] 1 S.C.R. 509 at 523, 1991 CanLII 86, R. v. Pan; R. v. Sawyer, 2001 SCC 42 at para. 50). [81] In his factum at para. 109, he quotes from Sir James Fitzjames Stephens: 109. Perhaps most importantly, as Sir James Fitzjames Stephens explained in A History of the Criminal Law of England, vol. 1 (London: MacMillan and Co., 1883) at pp. 304-05, jury unanimity manifests the requirement of proof beyond a reasonable doubt: The justification of the rule [requiring unanimity] seems to me to be that it is a direct consequence of the principle that no one is to be convicted of a crime unless his guilt is proved beyond all reasonable doubt. How can it be alleged that this condition has been fulfilled so long as some of the judges by whom the matter is to be determined do in fact doubt? [Emphasis in original.] [82] R.S. points out why the majority's reliance

in G.L.M. on R. v. Thatcher, [1987] 1 S.C.R. 652, 1987 CanLII 53, and R. v. Morin, [1988] 2 S.C.R. 345, 1988 CanLII 8, was misplaced, resulting in error. [83] R.S. identifies cases in other common law jurisdictions where the jury unanimity flexibility allowed in G.L.M. is not permitted: 121. England and Wales: Jurors must be unanimous on the "incident" or "sequence" (R. v. Farmer, [2013] EWCA Crim 126 at para. 40; see also R. v. Boreman, [2000] 1 All E.R. 307 at p. 317 (C.A.); R. v. Hobson, [2013] EWCA Crim 819 at para. 28). However, unanimity is not required for mode of commission or underlying facts (R. v. Giannetto, [1997] Cr. App. R. 1; R. v. K.(R.), [2008] EWCA Crim 1923 at para. 11).

122. United States: A specific unanimity instruction is required to avoid jurors convicting based on conclusions for different acts (United States v. Echeverry, 719 F.2d 974 at p. 976 (9th Cir. 1983)). Yet jurors need not be unanimous on the mode of offending or preliminary factual issues (United States v. Garcia, 400 F.3d 816 at p. 817 (9th Cir. 2005); Schad v. Arizona, 501 U.S. 624 at pp. 631-32 (1991)).

123. Australia: Unanimity is required for specific incidents (KBT v. The Queen, [1997] HCA 54; R. v. L.M., [2004] QCA 192). To reach that unanimity, jurors may differ on mode of offending and evidential path (R. v. Serratore, [1999] NSWCA 377, per Greg James J.; WGC v. The Queen, [2007] HCA 58 at para. 172, per Crennan J.). [84] On the other hand, R.S. and the Crown point out that the decision in G.L.M. has been applied repeatedly by this and other Canadian courts (R. v. Sharpe, 2007 BCCA 191; R. v. Stover, 2020 BCCA 368; R. v. Reyat, 2012 BCCA 311; R. v. Cadman, 2017 BCCA 204). In at least two cases, the Court of Appeal for Ontario has followed G.L.M. on this point (R. v. Sandhu, 2009 ONCA 102; R. v. Robinson, 2004 CanLII 31916 (Ont. C.A.)). The Court of Appeal for Saskatchewan relied on similar reasoning in R. v. Fischer (1987), 31 C.C.C. (3d) 303, 1987 CanLII 4858 (Sask. C.A.). [85] R.S. points to the comment made by the Court in R. v. M.R.H., 2019 SCC 46 at para. 5: [5] 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). [86] The question for this division is whether this issue makes it appropriate to refer this appeal to a five-justice division. Thus, the first step is to examine when an intermediary court of appeal will reverse itself. [87] The law in relation to that issue is well-settled. The issue raises what the minority (although not disagreed with on the law generally) in R. v. Kirkpatrick, 2022 SCC 33, described as "horizontal stare decisis" (at paras. 179-180). [88] There are generally three circumstances in which an intermediary appellate court may overturn prior decisions: where the decision was rendered per incuriam, that is where binding authority or statutory authority had been overlooked, and if considered, would have resulted in a different decision; where there is a manifest slip or error, "mistake, not a difference of opinion, being the

criterion" or "an error so obvious and clear that it is beyond any argument"; and the third, where the decision was neither per incuriam or based on a manifest slip or error, but was still wrong and circumstances require an overruling (R. v. Neves, 2005 MBCA 112 at paras. 75-83). [89] Here, it is the third circumstance that is invoked. There is no question that the law requires predictability, and at the same time, the ability to change. The Court in Neves framed it as follows, relying on sound authority: [83] There is a third instance when appellate courts have held that they can overrule a previous decision, and that is when the court is convinced that, although the previous judgment was neither per incuriam nor based on a manifest slip or error, it is nevertheless wrong and the circumstances warrant or require overruling. This is, obviously, a potentially slippery slope. Should what seemed right to one panel of judges be reversed by a different, albeit larger, panel of the same court only because that second panel considers that the first panel erred? How important are the particular circumstances of the case before the second panel? The certainty, predictability and stability of the law requires adherence to previous decisions. But justice must be also done, and as Roscoe Pound said in Interpretations of Legal History (1923), "[l]aw must be stable and yet it cannot stand

still." How should a court balance these core values when they conflict? [84] "[A]n appeal court should be slow to overrule one of its own decisions, particularly where the decision was not per incuriam." See Fredant Investments Ltd. v. Winnipeg City Assessor (1998), 131 Man. R. (2d) 29 at para. 28 (C.A.). Nevertheless, as was said in Thomson v. Nova Scotia (Workers' Compensation Appeals Tribunal) (2003), 223 D.L.R. (4th) 193, 2003 NSCA 14 (at para. 12): ... [T]here is sufficient flexibility in the doctrine of stare decisis to properly accommodate sound developments in the law without encroaching unduly on its stability and predictability. [90] In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612, the Court discussed the issue at paras. 72-73: [72] As a general rule, this court is bound to follow its past decisions, even if an individual judge or a different panel of the court disagrees with them. As Sharpe J.A. explained on behalf of a five-judge panel in Fernandes v. Araujo, 2015 ONCA 571, 127 O.R. (3d) 115, at para. 45: As an intermediate court of appeal, we are ordinarily bound to follow our past decisions, even decisions with which we disagree. It is important that we do so. Our common law legal tradition rests upon the idea that we will adhere to what we decided in the past. As expressed in the Latin

phrase stare decisis, we stand by things that have been decided. The rule of precedent provides certainty, consistency, clarity and stability in the law. It fosters the orderly and efficient resolution of disputes and allows parties to obtain reliable legal advice and to plan their affairs accordingly. [73] Even so, this court may depart from its own precedents. When this court is asked to overrule one of its own decisions, the court first asks whether the earlier decision was correctly decided. If the court determines that the earlier decision was wrongly decided, the court then asks whether the decision should be overruled, based on weighing the "advantages and disadvantages of correcting the error", by focusing on "the nature of the error, and the effect and future impact of either correcting it or maintaining it", including "the effect and impact on the parties and future litigants" and "on the integrity and administration of our justice system": David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161 (C.A.), at paras. 107, 127, leave to appeal refused, [2005] S.C.C.A. No. 388; see also R. v. Jenkins, 2010 ONCA 278, 99 O.R. (3d) 561, at para. 29, leave to appeal refused, [2010] S.C.C.A. No. 223; Green v. Canadian Imperial Bank of Commerce, 2014 ONCA 90, 118 O.R. (3d) 641, at para. 15, aff'd 2015 SCC 60, [2015] 3 S.C.R. 801; and

United States v. Aneja, 2014 ONCA 423, 120 O.R. (3d) 620, at para. 58. [91] This division is not deciding whether to overturn a decision of this Court, but whether to have a five-justice division consider the question. There is a need to protect limited judicial resources, and thus there needs to be a standard to apply on whether to order a reconsideration of another division's decision. Some guidance is found in Thomson v. Workers' Compensation Board (Nova Scotia), 2002 NSCA 58, where the Court was considering one of its previous decisions that limited its jurisdiction regarding Workers Compensation claims. The parties in Thomson put the legislative history and debates before the Court, which had not been before the court in the previous decision. In ordering a five-justice panel to hear the appeal, the Court said the following: [7] In proposing this approach in the present case I would not wish to be taken as departing in any way from the fundamental and important proposition that a decision arrived at by a three member panel of this Court is a decision of the Court which ought to be and will be followed by other panels of the Court. Certainty in the law and predictability of outcome require nothing less. As Craig, J.A. said in Bell v. Cessna Aircraft Co. (1983), 149 D.L.R. (3d) 509 (B.C.C.A.) at 511: Lawyers would be in an intolerable position in advising clients if a

division of the court was free to decide an appeal without regard to a previous decision or the principle involved in it. My understanding as a lawyer and as a member of the court has always been that the court has established a policy of treating a previous decision of the court as binding... [8] On the other hand, it has been generally recognized by appellate courts in Canada that they must retain the authority, in exceptional and compelling circumstances, to revisit their earlier decisions: see for example Freedant Investments Ltd. v. Winnipeg (City) Assessor (1998), 162 D.L.R. (4th) 382 (Man. C.A.) per Huband, J.A. at paras. 27 to 30; R. v. Salituro, [1991] 3 S.C.R. 654 at paras. 27-39; Canada (Minister of Indian Affairs and Northern Development) v. Ranville, [1982] 2 S.C.R. 518 at 527-8; R. v. B. (K.G.), [1993] 1 S.C.R. 740 at para. 63; Kings Mutual Insurance Co. v. Royal Bank of Canada et al. (1996), 153 N.S.R. (2d) 17 (C.A.). [9] It would not be appropriate, in my opinion, for a three judge panel of this Court to be more explicit than I have already been about the precise circumstances which might induce the Court to reconsider one of its earlier decisions. There is an extensive body of jurisprudence on that question throughout the common law world. That is a matter better considered by an enlarged panel of this Court. It is sufficient for present purposes to say that

there are circumstances under which such reconsideration will be appropriate, rare and exceptional though they may be. [10] The question for this panel, therefore, is whether there is arguably a sufficient basis to lead the court to reconsider its decision in Salloum. In my view, the new material and arguments which have been presented to us but which were not before the panel in Salloum provide such a basis. Without expressing any opinion on whether this Court should ultimately decide not to follow Salloum, I should briefly set out the material which has been provided to us which has led me to the conclusion that the issue of whether Salloum should be reconsidered ought to be argued before an enlarged panel of the court. [Emphasis added.] [92] The question here comes down to whether there is sufficient reason to warrant referring what was decided in G.L.M. to a five-justice division for reconsideration. Our role is not to decide whether G.L.M. should be overruled, but to perform what is commonly referred to as a "gatekeeper function". [93] Preferring an indictment or information that has a wide range of dates covering a multitude of allegations may well be problematic for an accused. However, experience also tells us that when there are long ongoing events, often seen in sexual assault cases where the child is the complainant, it is difficult, if not impossible, to precisely

define the dates and the events. [94] No Canadian court has held that there needs to be specific-act unanimity when a charge involves multiple acts in an ongoing transaction. Indeed, the law seems to be well-settled at the level of the intermediary courts of appeal. Despite the obiter comment by the Supreme Court in M.R.H., in my view, R.S. has not shown it would be appropriate for this Court to consider overruling G.L.M. [95] R.S. does not press the error with respect to the unanimity instruction to the jury if this Court refused a five-justice division. Conclusion [96] I would dismiss the appeal. "The Honourable Madam Justice Bennett" I AGREE: "The Honourable Mr. Justice Frankel" I AGREE: "The Honourable Madam Justice Horsman"