R v Anderson, 2019 SKCA 27

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3085 Citation: R v Anderson , 2019 SKCA 27 Date: 2019-03-22 Between: Skipp Edward Anderson Appellant And Her Majesty the Queen Respondent Before: Jackson, Ryan-Froslie and Schwann JJ.A.

Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Schwann On Appeal From: CRM 69 of 2017, Saskatoon Appeal Heard: December 4, 2018 Counsel: Mark Brayford, Q.C., and Brian Pfefferle for the Appellant W. Dean Sinclair, Q.C., for the Respondent Ryan-Froslie J.A. I. Introduction [ 1 ] The appellant, Skipp Edward Anderson, was convicted after trial by jury of sexual assault. He now appeals that conviction to this Court alleging the trial judge erred by briefly excluding Mr.

Anderson from the trial, refusing to admit relevant evidence and improperly charging the jury. He also contends the actions of Crown counsel were so improper as to result in a miscarriage of justice. [ 2 ] For the reasons set out herein, I would allow the appeal. II. Facts [ 3 ] It is uncontroverted that Mr. Anderson had anal sex with the complainant. The issue at trial was whether the complainant had consented or whether Mr. Anderson had an honest but mistaken belief that he had consented. [ 4 ] The alleged sexual assault occurred after a night of drinking and partying at Mr. Anderson’s home.

The complainant was described by witnesses as being “flirty and touchy” and during the evening had sat on Mr. Anderson’s knee in the hot tub. [ 5 ] Around 12:00 a.m., the complainant was so intoxicated he started to sink face-first into the hot tub. One of the other guests pulled the complainant out of the hot tub and Mr. Anderson put him on a bed in a room located on the main floor of the house. A couple of hours later, when Mr. Anderson and another guest, Mr. Caplette, went upstairs to retire, they found the complainant in the upstairs guest bedroom. Mr. Caplette went downstairs to sleep and Mr.

Anderson crawled into bed with the complainant. [ 6 ] Around 3:30 a.m., the complainant testified he woke up to find Mr. Anderson having anal intercourse with him. When he asked Mr. Anderson to stop, he did so. The complainant testified he had no memory of anything that had occurred from the time he was in the hot tub until he awoke. [ 7 ] Mr. Anderson testified the complainant had initiated sexual relations with him and that he believed, given the complainant’s actions, that he was consenting to sexual intercourse. III. The Issues [ 8 ] Mr.

Anderson put forth a number of grounds of appeal that may be summarized as follows:

(

a) that the trial judge lost jurisdiction when Mr. Anderson was briefly excluded from the courtroom; (

b) that the trial judge erred in his charge to the jury: (

i) by failing to properly direct the jury to disregard unsolicited evidence that Mr. Anderson had committed a prior sexual assault; (ii) by incorrectly admonishing the jury to disregard evidence that a Crown witness had paid a minor not to disclose a sexual assault; (iii) in his instruction on the burden of proof; and (iv) in his instruction on honest but mistaken belief; (

c) that the trial judge erred by excluding evidence relating to a prior sexual encounter between the complainant and Mr. Anderson; and (

d) that Crown counsel’s conduct resulted in a miscarriage of justice. [ 9 ] The argument that causes this Court to conclude a new trial is necessary relates to Mr. Anderson’s contention that the trial judge failed to properly instruct the jury to disregard evidence relating to his involvement in another sexual assault. It is uncontroverted that evidence was inadmissible. IV. Background [ 10 ] The circumstances underpinning Mr. Anderson’s argument are that during the examination-in-chief of Mr. McNally, a Crown witness, Mr. McNally gratuitously stated that Mr. Anderson had been involved in another sexual assault.

The relevant exchange was as follows: Q How did you end up making an offer to [the complainant]? How did that happen? What -- what happened there? A Skipp wanted an offer to be made because it would be cheaper than paying his lawyer for a second sexual assault case. [ 11 ] Defence counsel immediately objected and the jury was excused. Defence counsel contended the evidence was prejudicial and inadmissible and that the damage was probably “irreparable”.

He indicated the following: “at the very least, the jury needs to be given a strong warning that that particular comment needs to be stricken from -- as much as it can be, hopefully it can be, from their -- their collective minds and Mr. McNally needs to be admonished that he is not to go there again unless I bring it up myself”. [ 12 ] Crown counsel took the position that it would only serve to highlight the comment for the jury if the trial judge raised it with them at that juncture. She suggested the trial judge deal with it in his charge to the jury.

Defence counsel agreed. [ 13 ] It is evident from the record that neither Crown nor defence counsel had an opportunity to read the trial judge’s charge before it was given to the jury, nor was a written copy of the charge provided to the jury or counsel. During pre-charge discussions with counsel, the trial judge indicated he intended to address Mr.

McNally’s comment and “say it’s not evidence, you can’t consider it, ignore it, et cetera”. [ 14 ] In his charge, the trial judge directed the jury as follows: Before I start to deal with some of the evidence that you should consider I want to comment on two statements made by witnesses that are not to be considered by you. The first relates to a statement made by [Mr.] McNally, in -- it contained -- and it was contained in the cross-examination by Mr. Mitchell involving the allegation that Mr. McNally offered money to [the complainant] at the request of Mr. Anderson to drop the charge. Mr.

McNally made a comment that Mr. Anderson had done this in the past. That comment was without foundation. There is no evidence before you that any such situation occurred. You are to ignore that comment made by Mr. McNally and it shall form no part of your deliberations. (Emphasis added) Defence counsel did not object to the trial judge’s direction. V. Position of Counsel [ 15 ] Appellate counsel for Mr. Anderson, who were not the same as defence counsel at trial, contend the trial judge’s direction was insufficient.

They opine that reference to a prior sexual assault is the most prejudicial thing that can occur in a sexual assault trial and evidence of it should have resulted in a mistrial or, at the very least, an immediate instruction by the trial judge to the jury to disregard the evidence. Appellate counsel acknowledge defence counsel ultimately withdrew his request for that course of action to be followed. Having said that, appellate counsel submit a clear limiting instruction was nonetheless required.

It is their position that the direction given by the trial judge was insufficient as it did not clearly identify the statement in issue or when it occurred. Further, appellate counsel contend the fact defence counsel did not object to the direction given is not fatal to the appellant’s right to appeal in the circumstances prevailing in this case. [ 16 ] The Crown, on the other hand, argues the trial judge’s charge must be considered as a whole along with the submissions of

Crown and defence counsel. In context, the reference to Mr. Anderson being involved in a second sexual assault was not highlighted byanything that occurred after that testimony had been given. In the circumstances, the Crown submits that even though the trial judgefailed to correctly identify the context in which the statement was made, which is that it came up in examination-in-chief, his instructionwas nonetheless clear. The Crown also contends the fact defence counsel failed to object to the trial judge’s direction is significant.

TheCrown asserts that, as the Supreme Court noted in R v Jacquard, (SCC), [1997] 1 SCR 314, “the right of an accused toa properly instructed jury does not equate with the right to a perfectly instructed jury” (at para 32). VI.

Analysis [17] In R v Naistus, 2019 SKCA 4, Caldwell J.A., writing for this Court, described the proper approach to be taken by appellatecourts when considering a jury charge: [21] … I start with the proposition that this Court must adopt a functional approach when reviewing a jury charge, the purpose ofwhich is to ensure that the jury was properly – not perfectly – instructed (R v Jacquard, (SCC), [1997] 1 SCR 314at paras 32 and 62; R v Daley, 2007 SCC 53, [2007] 3 SCR 523).

Acting on this foundational principle, appellate courts must examinethe whole of the jury’s instructions to assess whether they achieve their purpose, namely, to equip the trier of fact with the toolsnecessary to make the findings required in the case at hand. As this suggests, the Court cannot examine a single piece of a jury charge inisolation from the rest of the charge or from what has occurred in the trial.

Matters such as the evidence adduced by the parties, thetheories and submissions of the parties, and the parties’ suggestions and objections, if any, about the content of the jury charge are allmaterial to the question of whether a jury charge functionally achieved its purpose (R v Jacquard at paras 33–36; R v Daley at para 58;Thériault v The Queen, (SCC), [1981] 1 SCR 336 at 343–344; R v Royz, 2009 SCC 13 at para 3, [2009] 1 SCR 423); sotoo are the language, style and format of the jury charge chosen by the trial judge to convey his or her instructions to the jury (R v Daleyat para 30). (Emphasis added) [18] In the recent case of R v Calnen, 2019 SCC 6 [Calnen], Moldaver J., writing for the majority, endorsed the “functionalapproach” to reviewing a jury charge, indicating the question to be asked by an appellate court is “whether the charge as a whole enabledthe trier of fact to decide the case according to the law and the evidence”(citations omitted, at para 8).

He quoted the following statementby Bastarache J. in R v Daley, 2007 SCC 53, [2007] 3 SCR 523 [Daley]: [30] … The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mindof the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequencefollowed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. (Emphasis added) [19] The evidence that Mr. Anderson had been involved in a prior sexual assault was inadmissible.

It was similar fact evidence thatshould not have been heard by the jury. The danger associated with the admission of such evidence is that of propensity reasoning – thatbecause Mr.

Anderson had committed a sexual assault before, the jury might reason he was more likely to have sexually assaulted thecomplainant and, accordingly, his version of events should not be believed. [20] Generally, when inadmissible evidence is presented before a jury, whether intentionally or inadvertently (as in this case), atrial judge should either immediately caution the jury to disregard the evidence or, if the trial judge believes such a caution would not besufficient, he or she should order a mistrial: R v D.(L.E.), (SCC), [1989] 2 SCR 111 at 124–125 [D.(L.E.)]. [21] In D.(L.E.), the Supreme Court dealt with a situation analogous to the one before this Court.

The appellant in that case hadbeen convicted of two counts of sexual assault arising out of separate incidents. The complainant was the appellant’s daughter. Theappellant denied the assaults had occurred and thus the issue at trial was credibility. During cross-examination, the complainant’s mothergave an unsolicited response in which she mentioned an incest charge against the appellant that had been stayed. The trial judge hadpreviously ruled evidence of that charge was inadmissible.

Defence counsel, faced with the mother’s response, decided to cross-examineher about the reason the charge had been stayed; following which, he applied for a mistrial. [22] The trial judge dismissed the defence’s motion and, instead, ruled the evidence with respect to the incest charge was nowadmissible to correct the “erroneous impression” that the charges were stayed because the allegation was false. In his charge to the jury,the trial judge warned the jury numerous times that the appellant was not on trial for incest and that the evidence relating to the incestallegation was simply “background”.

The appellant was convicted and the Court of Appeal confirmed that conviction. [23] The Supreme Court, L’Heureux-Dubé J. dissenting, allowed the appeal and ordered a new trial.

While the appeal wasultimately determined on the basis the trial judge had erred by admitting the mother’s testimony relating to the incest charge, themajority’s comments with respect to a jury hearing inadmissible evidence, and how it should be dealt with, are instructive. [24] Justice Sopinka, writing for the majority in D.(L.E.), stated the following (at 126–127): [I]f the trial judge was of the view that the answer given by the complainant’s mother and the cross-examination would create a falseimpression in the minds of the jury that would distort the proceedings, he ought to have declared a mistrial rather than admit the similarfact evidence.

The initial answer of the witness was unresponsive to the question although undoubtedly it was an innocent and instinctiveact. While the cross-examination by counsel for the accused compounded the error, and counsel for the accused is by no meansblameless, this does not relieve the trial judge of his duty to exclude inadmissible evidence. In R. v. Ambrose (1975), (NB CA), 25 C.C.C. (2d) 90 (N.B.S.C., App.

Div.), aff’d (SCC), [1977] 2 S.C.R. 717, a Crown witness made anunresponsive statement on cross-examination by defence counsel who then invited the witness to repeat the statement rather thanobjecting immediately to the answer. I agree with the following statement of the Appeal Division, at pp. 91–92, with respect to the duty

of a trial judge: In a criminal trial there is a duty on the trial Judge to exclude inadmissible evidence even though adduced by counsel for theaccused or not objected to, and should inadmissible evidence be adduced, the trial Judge should either instruct the juryimmediately to disregard it or, if it is of so prejudicial a nature that the jury would not have the capability of disregarding it, heshould discharge the jury and order a new trial: [citations omitted].

If the trial judge was of the view that an immediate caution to the jury to disregard the evidence was insufficient to ensure a fair trial,then his course was to direct a mistrial rather than admit the evidence of similar acts which had previously been excluded. (Emphasis added) [25] Justice Sopinka discussed the prejudicial effect of such evidence, which informs the basis for excluding it, namely (

a) that thejury may assume the accused is a “bad person” who is likely guilty of the offence charged, (

b) that there might be a tendency to punishthe accused for past conduct, and (

c) that the jury might focus on whether the accused actually committed the similar acts and substitutethem for the offences actually charged (D.(L.E.) at 127–128). [26] In this case, defence counsel immediately objected to the admissibility of Mr. McNally’s reference to a prior sexual assault.Based on D.(L.E.), the trial judge should either have given an immediate caution to the jury to disregard that evidence or, if he believedsuch a caution would not be sufficient, he should have ordered a mistrial.

The trial judge was led to do neither by defence counsel, whoagreed with Crown counsel’s suggestion that, instead of an immediate caution, the trial judge should address the matter in his charge tothe jury. Defence counsel asserted a clear instruction to disregard the evidence would be required. There was no obvious tactical reasonfor defence counsel agreeing to this course and thus, in my view, it did not overcome the trial judge’s duty as described at page 127 of D.(L.E.). Whether the trial judge’s failure to give a mid-trial instruction was an error was not raised or argued on this appeal.

Rather,appellate counsel took the position that the ultimate direction given by the trial judge to the jury was not sufficient. [27] Assuming it was possible to give the direction in the final charge, in my view, the trial judge’s instruction did not adequatelyidentify the evidence to be disregarded and, as such, there was an error in law. In his charge, the trial judge incorrectly indicated theevidence came out during Mr. McNally’s cross-examination by defence counsel. He then went on to describe the evidence as “theallegation that Mr. McNally offered money to [the complainant] at the request of Mr.

Anderson to drop the charge. Mr. McNally made acomment that Mr. Anderson had done this in the past”. [28] The offering of money to the complainant to drop the charge was not the evidence the jury should have been directed todisregard. It was the inadmissible evidence that Mr. Anderson had been involved in a “second sexual assault”.

Significantly, there isnothing in the trial judge’s direction to the jury that links the caution given by him to the inadmissible evidence, nor was there anythingin the balance of the charge itself or the submissions of counsel that served to correct that error. [29] The Crown contends the fact defence counsel did not object to the judge’s direction is significant because it suggests that, inthe eyes of counsel, the charge was satisfactory and that any perceived misdirection or error was not serious. [30] Justice Bastarache explained the role of counsel with respect to a jury charge in Daley: [58] … it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’sinstructions to the jury.

While not decisive, failure of counsel to object is a factor in appellate review. The failure to register acomplaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the allegedviolation.

See Jacquard, at para. 38: “In my opinion, defence counsel’s failure to object to the charge says something about both theoverall accuracy of the jury instructions and the seriousness of the alleged misdirection”. (Emphasis added) See also R v Thériault, (SCC), [1981] 1 SCR 336, where Dickson J. (as he then was) wrote, “Although by no meansdeterminative, it is not irrelevant that counsel for the accused did not comment, at the conclusion of the charge, upon the failure of thetrial judge to direct the attention of the jury to the evidence” (at 343–344).

Justice Bastarache’s statement was quoted with approval bythe majority in Calnen at para 38. [31] In my view, the failure of defence counsel to object to the charge, in the context of this case, is not significant as it neithersupports the accuracy of the instruction nor the conclusion that the misdirection was not serious. I say this for a number of reasons. [32] First, when the prior sexual assault was mentioned in testimony, defence counsel immediately objected. He pointed out theinadmissibility of the evidence and requested a clear instruction be given to the jury to disregard it.

He never waivered from thatposition. Second, the trial judge indicated to counsel during the pre-charge discussion that he would give a clear direction to disregardthe evidence. Third, counsel had no opportunity to read the trial judge’s charge before or after it was delivered. The instruction was briefand defence counsel may not have fully grasped the error now identified by appellate counsel. Finally, defence counsel had no obvioustactical reason for not objecting to the direction.

On the contrary, the evidence was both inadmissible and highly prejudicial to his client. [33] In my view, the trial judge’s direction was inadequate and constituted an error in law. It did not clearly identify the evidence tobe disregarded nor did anything in the charge or in counsel’s submissions to the jury assist to ameliorate that error. The words used bythe trial judge would not have conveyed to the jury that it was the prior sexual assault that was to be disregarded.

Such an error wouldnecessitate a new trial subject to the application of s. 686(1)(b)(iii) of the Criminal Code. [34] Section 686(1)(b)(iii) provides as follows: Powers

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal … (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred … [ 35 ] Recently, in Calnen , the Supreme Court reaffirmed the application of s. 686(1)(b)(iii) – what is commonly referred to as the curative proviso – to errors of law occasioned by misdirections in a jury charge.

Justice Moldaver, writing for the majority, stated the following: [3] My colleague takes the position that it was essential for the trial judge to provide a limiting instruction against general propensity reasoning – namely, the reasoning that because Mr. Calnen was a person of bad character who engaged in disreputable and morally repugnant conduct, he was more likely to have committed the crime charged.

His failure to provide such a limiting instruction, in her view, renders the jury’s verdict of second degree murder suspect and warrants a new trial. [4] As a preliminary matter, I am of the view that the alleged error upon which my colleague would order a new trial is properly characterized as an alleged error of law under s. 686(1) (a)(ii) of the Criminal Code , R.S.C. 1985, c. C-46 , as opposed to an unreasonable verdict under s. 686(1) (a)(i).

The distinction is an important one from the Crown’s perspective because in an appropriate case where the error comes within s. 686(1)(a)(ii), the Crown would be able to rely on the curative proviso under s. 686(1)(b)(iii) – something it could not do if the case truly involved an unreasonable verdict as contemplated under s. 686(1)(a) (i) .

To be clear, however, this is not a case where the Crown needed to rely on the curative proviso because, as I will explain, there was no legal error that required its use. (Emphasis added) See also: R v Van , 2009 SCC 22 at para 34 , [2009] 1 SCR 716 [ Van ]; R v Illes , 2008 SCC 57 at para 21 , [2008] 3 SCR 134 [ Illes ]; and R v Khan , 2001 SCC 86 at paras 16 and 19 , [2001] 3 SCR 823 [ Khan ]. [ 36 ] In Van , LeBel J., writing for a majority of the Court, described the operation of s. 686(1)(b)(iii) in these terms: [34] It is worthwhile taking one small step back for a moment to acknowledge that not every error in a criminal trial warrants appellate intervention.

Under s. 686(1)(

a) of the Criminal Code , an appeal against a conviction may be allowed only in the event of an error of law, an unreasonable verdict, or a miscarriage of justice. In this case, it is not dis​puted that the failure to give a limiting instruction is an error of law that falls within s. 686(1)( a )(ii) and that the appeal could therefore have been allowed. However, it still falls to this Court to determine whether the convictions can be upheld despite the existence of an error, with resort to s. 686(1)( b )(iii) of the Code .

Under this provision, a conviction can be upheld providing that the error has not resulted in a substantial wrong or a miscarriage of justice. The Crown bears the burden of showing the appel​late court that the provision is applicable, and sat​isfying the court that the conviction should stand notwithstanding the error. To do so, it must estab​lish that the error of law falls into one of two cate​gories. First, that it is an error so harmless or minor that it could not have had any impact on the verdict.

In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: Khan ; R. v. Trochym , 2007 SCC 6 , [2007] 1 S.C.R. 239 . (Emphasis added) See also Illes at para 21 and Khan at paras 29–31 . [ 37 ] In the appeal at hand, the Crown has failed to show that s. 686(1)(b)(iii) should be applied. Given the potential for propensity reasoning, and thus for serious prejudice to Mr.

Anderson, the error in this case cannot be said to be so harmless or minor that it could not have impacted the verdict. Further, as Mr. Anderson’s case turns on credibility, it cannot be said that the evidence against him was so overwhelming that a different verdict could not be obtained. In the circumstances, a new trial must be ordered. VII. Conclusion [ 38 ] The appeal is allowed, the conviction is set aside and a new trial is ordered. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Schwann J.A.” Schwann J.A.