R. v. L.H.S., 1999 BCCA 307

• Judge: Prowse, Finch and Ryan, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 07, 1999
• Jurisdiction: British Columbia
• Citations: 1999 BCCA 307;(1999), 122 B.C.A.C. 300 (CA)

R. v. L.H.S. (1999), 122 B.C.A.C. 300 (CA);

    200 W.A.C. 300

MLB headnote and full text

Temp. Cite: [1999] B.C.A.C. TBEd. JN.017

Regina (respondent) v. L.H.S. (appellant)

(CA023066; 1999 BCCA 307)

Indexed As: R. v. L.H.S.

British Columbia Court of Appeal

Prowse, Finch and Ryan, JJ.A.

May 7, 1999.

Summary:

The accused was convicted by a jury of several counts involving his stepdaughter: one count of sexual interference, two counts of invitation to sexually touch, sexual assault and assault causing bodily harm. The accused appealed his convictions.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 692

Sexual offences - Public morals and dis­orderly conduct - Sexual offences - Evi­dence - Admissibility hearing - Evidence of complainant's sexual activity - The accused was charged with sexual offences against his eight year old stepdaughter - Defence counsel sought a hearing under s. 276.2 of the Criminal Code to determine whether evidence that the complainant engaged in sexual play with another young child, was admissible under s. 276(2) - The British Columbia Court of Appeal held that s. 276.1 was inapplicable to the complaints of a child, nor did the phrase "sexual activity" in s. 276(2) include the type of activity in which the children engaged - The trial judge did not err in refusing to hold a s. 276.2 hearing - See paragraphs 50 to 64.

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - On a conviction appeal, the accused sought to introduce new evidence allegedly dem­onstrating bias or raising a reasonable apprehension of bias by one of the jurors - The evidence related to the state of mind or attitude of the juror towards the accused - The British Columbia Court of Appeal held that the evidence was not inadmissible on the basis that it was hearsay - The court held that even if admissible, the evidence did not disclose bias or a reasonable appre­hension of bias on the part of the unnamed juror against the accused - See paragraphs 65 to 79.

Criminal Law - Topic 4322

Procedure - Jury - General - Jurors - Re­placement - After the two accused were placed in charge of the jury, one of the jurors was excused - Following an adjourn­ment, one accused asked to have another juror selected - The British Columbia Court of Appeal held that for purposes of s. 644 of the Criminal Code, the trial commenced at the time when the accused were put in the charge of the jury - Thus, the trial judge did not err in refusing to add a replacement juror after the trial had commenced - See paragraphs 10 to 26.

Criminal Law - Topic 4325.1

Procedure - Jury - General - Discharge of juror - Proceeding with reduced number of jurors - [See Criminal Law - Topic 4322 ].

Criminal Law - Topic 4331

Procedure - Jury - General - Verdicts - Polling of jury - The trial judge refused to poll the jury after they had rendered their verdict - The British Columbia Court of Appeal held that the trial judge did not err in finding there was no justification for polling the jury, only defence counsel's speculation that the jury did not understand the meaning of the word "unanimous" - See paragraphs 39 to 41.

Criminal Law - Topic 4375.2

Procedure - Jury charge - Directions re­garding prior inconsistent statements - A child complainant was interviewed by police twice on videotape - At the ac­cused's trial, the videotapes were admitted as evidence and the complainant adopted what she had said on them - The British Columbia Court of Appeal held that the trial judge did not err in his jury charge on the complainant's prior inconsistent state­ments - Her initial reluctance to make disclosures was not inconsistent with her later trial testimony; it was not contradic­tory - While it was preferable for the trial judge to have cautioned the jury respecting the weight to be placed on her evidence, the failure to do so was not reversible error - See paragraphs 46 to 48.

Criminal Law - Topic 4438

Procedure - Verdicts - Discharges and dismissals - Inconsistent verdicts - The accused and his common law wife were jointly charged with assault causing bodily harm to the wife's eight year old daughter - A jury convicted the accused but acquitted the wife - The British Columbia Court of Appeal held that there was direct evidence from the complainant consistent with putting the charge to the jury and with the accused's conviction - The court ruled that the verdicts were not inconsist­ent - See paragraphs 42 to 45.

Criminal Law - Topic 4487

Procedure - Trial - Appearance of accused - Absconding by accused - The two accused failed to appear on the first date set for the calling of evidence before the jury - The trial had already been delayed considerably, largely because one accused lacked counsel - He was already warned the trial would proceed whether or not he had counsel - Information before the trial judge, plus his previous dealings with the accused, supported the judge's conclusion that the accused voluntarily absented them­selves to impede or frustrate the trial - They intentionally arranged medical ap­pointments elsewhere to coincide with the trial dates and failed to demonstrate their necessity - The British Columbia Court of Appeal affirmed that the accused absconded and the procedure followed in determining this - See paragraphs 27 to 38.

Cases Noticed:

R. v. Lo (P.) (1995), 62 B.C.A.C. 62; 103 W.A.C. 62 (C.A.), leave to appeal ref­used (1996), 203 N.R. 319; 85 B.C.A.C. 79; 138 W.A.C. 79 (S.C.C.), consd. [para. 14].

R. v. Piche (R.F.) (1997), 86 B.C.A.C. 188; 142 W.A.C. 188; 113 C.C.C.(3d) 149 (C.A.), appld. [para. 15].

R. v. Basarabas; R. v. Spek, [1982] 2 S.C.R. 730; 46 N.R. 69, refd to. [para. 17].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 17].

R. v. Andrews (1984), 13 C.C.C.(3d) 207 (B.C.C.A.), refd to. [para. 22].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 6 C.R.R.(2d) 35; 83 D.L.R.(4th) 193, refd to. [para. 53].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 67].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [para. 67].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 106 D.L.R.(3d) 212; 50 C.C.C.(2d) 193; 17 C.R.(3d) 34 (Fr.), refd to. [para. 69].

R. v. Sauve (G.J.) (1997), 101 B.C.A.C. 21; 164 W.A.C. 21; 121 C.C.C.(3d) 225 (C.A.), refd to. [para. 69].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 43 C.R.(4th) 26 (C.A.), refd to. [para. 69].

R. v. Pan (R.W.) (1999), 120 O.A.C. 1 (C.A.), refd to. [para. 72].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 74].

Committee for Justice and Liberty Founda­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 74].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 276(1) [para. 53]; sect. 276(2) [para. 51]; sect. 276.1 [para. 51]; sect. 276.2 [para. 50]; sect. 475 [para. 28]; sect. 644 [para. 21].

Counsel:

S. Goldberg, for the appellant;

M.T. Ainslie, for the respondent.

This appeal was heard at Vancouver, British Columbia, on January 28, 1999, before Prowse, Finch and Ryan, JJ.A., of the British Columbia Court of Appeal.

On May 7, 1999, Prowse, J.A., delivered the following decision for the Court of Appeal.