R. v. C.W.H., (1991) 3 B.C.A.C. 205 (CA)

• Judge: Anderson, Toy and Wood, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 27, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 3 B.C.A.C. 205 (CA);1991 CanLII 3956 (BC CA);68 CCC (3d) 146;3 BCAC 205;[1991] BCJ No 2753 (QL);14 WCB (2d) 89;7 WAC 205

R. v. C.W.H. (1991), 3 B.C.A.C. 205 (CA);

    7 W.A.C. 205

MLB headnote and full text

Regina (respondent) v. C.W.H. (appellant)

(CA012006)

Indexed As: R. v. C.W.H.

British Columbia Court of Appeal

Anderson, Toy and Wood, JJ.A.

September 27, 1991.

Summary:

The accused was convicted by a jury of sexual assault and gross indecency. The accused appealed, submitting that the trial judge erred in (1) directing the jury respecting reasonable doubt and credibility; (2) failing to direct the jury to ignore Crown comments that they should draw an adverse inference from the accused's failure to call more or better character evidence; and (3) failing to direct the jury on the purpose and relevance of character evidence.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 4351

Procedure - Jury charge - Directions re burden of proof and reasonable doubt - The accused was charged with sexual assault and gross indecency - The complainant testified the acts occurred - The accused denied them - The British Columbia Court of Appeal stated that the jury was to be directed that (1) if they believed the accused they must acquit; (2) if they were unable to decide who to believe they must acquit; (3) if they did not believe the accused, but were left with a reasonable doubt about it, they must acquit; and (4) if they were not left in doubt by the accused's evidence, or rejected it entirely, they must still be convinced beyond a reasonable doubt, on the basis of the evidence they did accept, of the accused's guilt - See paragraphs 13 to 26.

Criminal Law - Topic 4377

Procedure - Jury charge - Directions re credibility of witnesses - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4379

Procedure - Jury charge - Directions re credibility or character of accused - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4379

Procedure - Jury charge - Directions re credibility or character of accused - The accused was charged with sexual assault, which he denied - Credibility may have been the most important issue - The trial judge, in giving cursory directions on character evidence, failed to advise the jury on use of the evidence - The British Columbia Court of Appeal stated that the jury should have been instructed to weigh character evidence with all other evidence when considering whether the Crown proved the accused's guilt beyond a reasonable doubt - The court rejected the Crown's submission that evidence of general reputation or honesty had less relevance in sexual assault cases than in cases involving dishonesty - See paragraphs 27 to 51.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Intemperate or improper statements - An accused charged with sexual assault and gross indecency denied the events occurred - The Crown, in addressing the jury, made comments suggesting that they should draw an adverse inference against the accused because of his failure to call better character evidence - The British Columbia Court of Appeal stated that the statements were improper and should not have been made - See paragraphs 27 to 29.

Criminal Law - Topic 5449

Evidence - Witnesses - Testimony respecting the accused - Character of accused - Adverse inference respecting - [See Criminal Law - Topic 4419 ].

Cases Noticed:

R. v. Challice (1979), 45 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 14].

R. v. Nadeau, [1984] 2 S.C.R. 570; 56 N.R. 130, refd to. [para. 14].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181, refd to. [para. 14].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113; [1987] 4 W.W.R. 193; 57 C.R.(3d) 97, refd to. [para. 15].

R. v. Chan (1989), 100 A.R. 133; 52 C.C.C.(3d) 184 (C.A.), refd to. [para. 17].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), appld. [para. 23].

R. v. Rooke (1988), 40 C.C.C.(3d) 484 (B.C.C.A.), refd to. [para. 30].

R. v. Rowton (1865), Le. & Ca. 520; 169 E.R. 1497, refd to. [para. 31].

R. v. Elmosri (1985), 12 O.A.C. 161; 23 C.C.C.(3d) 503 (C.A.), refd to. [para. 36].

R. v. Smith (1985), 8 O.A.C. 241; 19 C.C.C.(3d) 115 (C.A.), refd to. [para. 37].

R. v. R.S. - see R. v. Smith.

R. v. McFadden (1981), 33 B.C.L.R. 96 (C.A.), refd to. [para. 39].

R. v. Yadollahi (1987), 19 O.A.C. 392; 36 C.C.C.(3d) 478 (C.A.), refd to. [para. 39].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 486(3) [para. 2].

Counsel:

R.E. Williamson, for the appellant;

   A. Budlovsky, for the respondent.

This appeal was heard on June 10, 1991, at Vancouver, B.C., before Anderson, Toy and Wood, JJ.A., of the British Columbia Court of Appeal.

On September 27, 1991, Wood, J.A., delivered the following judgment for the Court of Appeal.