R. v. C.D.B., (2015) 368 B.C.A.C. 214 (CA)

• Judge: Lowry, D. Smith and Harris, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 16, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 368 B.C.A.C. 214 (CA);2015 BCCA 94

R. v. C.D.B. (2015), 368 B.C.A.C. 214 (CA);

    633 W.A.C. 214

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. MR.023

Regina (respondent) v. C.D.B. (appellant)

(CA040940; 2015 BCCA 94)

Indexed As: R. v. C.D.B.

British Columbia Court of Appeal

Lowry, D. Smith and Harris, JJ.A.

March 6, 2015.

Summary:

The accused was charged with sexually assaulting his partner's daughter (A.M.) when she was five and six years old. The Crown's case consisted primarily of a video-recorded statement that A.M. gave to a police officer. During their deliberations, the jury asked to see the video again. The trial judge directed that the video be given to the jury to be replayed by them in the jury room. He also directed that an audio recording of A.M.'s cross-examination be given to the jury, and instructed them that they could listen to it if they so chose. The accused was found guilty. He appealed, arguing that the trial judge erred by allowing the jury to choose what additional evidence they should hear.

The British Columbia Court of Appeal dismissed the appeal. The trial judge should not have instructed the jury that they could choose whether to listen to the audio recording of A.M.'s cross-examination. However, to the extent that the trial judge's instruction amounted to a misdirection, it was not one that resulted in any substantial wrong or miscarriage of justice because A.M. did not say anything in cross-examination that qualified or weakened what she said in the video-recorded statement.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4341.2

Procedure - Jury - Evidence - Leaving copies of transcripts, statements and exhibits with jury - See paragraphs 19 to 25.

Criminal Law - Topic 4345

Procedure - Jury - Evidence - Jury request to review evidence or argument - See paragraphs 19 to 25.

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - See paragraphs 19 to 25.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - See paragraphs 19 to 25.

Cases Noticed:

R. v. C.C.F., [1997] 3 S.C.R. 1183; 220 N.R. 362; 104 O.A.C. 321, refd to. [para. 7].

R. v. Olbey, [1980] 1 S.C.R. 1008; 30 N.R. 152, refd to. [para. 15].

R. v. Stewart and Johnson, [1969] 2 C.C.C. 244; 5 C.R.N.S. 75 (B.C.C.A.), refd to. [para. 16].

R. v. R.W.N. (2004), 182 O.A.C. 150; 181 C.C.C.(3d) 470 (C.A.), leave to appeal denied [2004] S.C.C.A. No. 297, refd to. [para. 18].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 18].

Counsel:

J.J. Blazina, for the appellant;

M.K. Brown, for the respondent.

This appeal was heard in Vancouver, B.C., on February 16, 2015, before Lowry, D. Smith and Harris, JJ.A., of the British Columbia Court of Appeal. Lowry, J.A., delivered the following judgment for the court on March 6, 2015.