R. v. J.B., (1995) 55 B.C.A.C. 59 (CA)

• Judge: Southin, Hollinrake and Donald, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 18, 1995
• Jurisdiction: British Columbia
• Citations: (1995), 55 B.C.A.C. 59 (CA)

R. v. J.B. (1995), 55 B.C.A.C. 59 (CA);

    90 W.A.C. 59

MLB headnote and full text

Regina (respondent) v. J.B. (appellant)

(CA018562)

Indexed As: R. v. J.B.

British Columbia Court of Appeal

Southin, Hollinrake and Donald, JJ.A.

January 18, 1995.

Summary:

The accused father appealed from convic­tion on two counts of indecent assault and two counts of gross indecency involving two of his daughters.

The British Columbia Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial.

Criminal Law - Topic 4364

Procedure - Jury charge - Directions regarding unanimity and disagreement - Redirection - A jury returned with the question "what if you have one or more jurors who cannot come to a unanimous decision?" - The trial judge responded as if the question related to the collective decision-making of the jury as a whole - The British Columbia Court of Appeal held that the jury was concerned about indecision in the mind of the individual juror (probably resulting from the compet­ing evidence of the accused and the com­plainant) - The court set out four points regarding consideration of the accused's testimony on which the jury should have been recharged - The court held that the trial judge should have dealt with both interpretations of the jury's question.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 4].

R. v. C.W.H. (1991), 3 B.C.A.C. 205; 7 W.A.C. 205; 68 C.C.C.(3d) 146 (C.A.), refd to. [para. 4].

R. v. De Bellefeuille (S.M.) (1994), 39 B.C.A.C. 276; 64 W.A.C. 276 (C.A.), refd to. [para. 9].

R. v. W.D.S. (1994), 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321 (S.C.C.), refd to. [para. 9].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(3) [para. 11].

Counsel:

R. Bruneau, for the appellant;

J. Gordon, for the respondent.

This appeal was heard in Kamloops, Brit­ish Columbia, before Southin, Hollinrake and Donald, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered orally on January 18, 1995, including the following opinions:

Donald, J.A. - see paragraphs 1 to 12;

Southin, J.A. - see paragraphs 13 and 15;

Hollinrake, J.A. - see para­graph 14.