R. v. Sandhu (H.S.), 2009 ONCA 102

• Judge: Laskin, Rouleau and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Friday June 20, 2008
• Jurisdiction: Ontario
• Citations: 2009 ONCA 102;(2009), 265 O.A.C. 206 (CA)

R. v. Sandhu (H.S.) (2009), 265 O.A.C. 206 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.003

Her Majesty the Queen (respondent) v. Harpreet Singh Sandhu (appellant)

(C43661; 2009 ONCA 102)

Indexed As: R. v. Sandhu (H.S.)

Ontario Court of Appeal

Laskin, Rouleau and Epstein, JJ.A.

February 2, 2009.

Summary:

The accused was charged on a three-count indictment with assault, uttering a threat to cause death and sexual assault. The complainant was the accused's estranged wife. Each count spanned the years 1996 to 2002. A jury convicted the accused of the assault and sexual assault charges but acquitted him of the threat charge. The accused appealed, arguing that the trial judge did not instruct the jury about the improper use of evidence across counts, that the indictment offended the single transaction rule, and that the trial judge's instruction compromised the requirement of jury unanimity.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 4323

Procedure - Jury - Unanimity or disagreement among jurors - The accused was charged on a three-count indictment with assault (four incidents), uttering a threat to cause death and sexual assault (two incidents) - The complainant was the accused's estranged wife - Each count spanned the years 1996 to 2002 - A jury convicted the accused of the assault and sexual assault charges but acquitted him of the threat charge - The accused appealed, arguing that the trial judge's instruction compromised the requirement of jury unanimity - The accused alleged that, to be guilty of assault or sexual assault, all 12 jurors had to find him guilty of at least one common incident in each count - The trial judge, however, instructed the jury that, though the complainant testified to more than one incident of assault and sexual assault, the Crown was only required to prove one assault and sexual assault beyond a reasonable doubt - The result was that he could be found guilty of assault if three jurors found him guilty on the first incident, three on the second incident, three on the third incident and three on the fourth incident of assault - The accused alleged that the jury should have been told that they had to be unanimous on at least one of the incidents - The Ontario Court of Appeal rejected the argument - Individual jurors could take different factual paths to reach a conclusion of guilt provided each juror was convinced beyond a reasonable doubt on all the essential elements of the offence - Individual jurors were entitled to reach different conclusions on which incident or incidents included in a single count were made out on the evidence - A unanimous finding that the accused committed each offence was sufficient to meet the requirement of jury unanimity - See paragraphs 26 to 33.

Criminal Law - Topic 4364

Procedure - Charge or directions - Jury or judge alone - Directions regarding unanimity and disagreement - [See Criminal Law - Topic 4323].

Criminal Law - Topic 4367

Procedure - Jury charge - Directions regarding separation of evidence respecting several counts - The accused was charged on a three-count indictment with assault (four incidents), uttering a threat to cause death and sexual assault (two incidents) - The complainant was the accused's estranged wife - Each count spanned the years 1996 to 2002 - A jury convicted the accused of the assault and sexual assault charges but acquitted him of the threat charge - The accused appealed, arguing that the trial judge did not instruct the jury about the improper use of evidence across counts - The trial judge instructed the jury to consider each of the counts separately - However, the accused alleged that because the three counts were found in one indictment and the Crown did not bring a similar fact application, the trial judge was obliged to warn the jury that they could consider only the evidence relevant to each assault in arriving at a verdict on that assault - Otherwise, the jury could use evidence on one count to infer that the accused was the sort of bad person who would commit the offences charged on the other counts - The Ontario Court of Appeal rejected the argument - Here, there was one victim and no material evidence outside the scope of the indictment - Much of the evidence given by both the accused and the complainant were relevant to all the counts - The accused's discreditable conduct was relevant and admissible to show animus toward the complainant in cases where an accused was alleged to have engaged in abusive conduct against the same complainant over a period of time - Further, the jury acquitted the accused of the threatening death charge - This strongly suggested that the jury considered, to the extent possible, the evidence supporting each count separately, and that it was not overly influenced by notions of general propensity or bad character - See paragraphs 11 to 18.

Criminal Law - Topic 4735.2

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Requirement of one count for each transaction - The accused was charged on a three-count indictment with assault, uttering a threat to cause death and sexual assault - The complainant was the accused's estranged wife - Each count spanned the years 1996 to 2002 - A jury convicted the accused of the assault and sexual assault charges but acquitted him of the threat charge - The accused appealed, arguing that the indictment offended the single transaction rule in s. 581(1) of the Criminal Code which stipulated that each count in an indictment shall in general apply to a single transaction - He alleged that several incidents of assault and sexual assault did not constitute a single transaction, and therefore the indictment was flawed - The Ontario Court of Appeal rejected the argument - The acts the accused allegedly committed amounted to a pattern of conduct - They were acts of domestic abuse against the same complainant, his wife, in their family home, during the last four years of their marriage - Further, there was no evidence that the indictment had prejudiced him - See paragraphs 19 to 25.

Cases Noticed:

R. v. B.M. (1998), 115 O.A.C. 117; 42 O.R.(3d) 1 (C.A.), dist. [para. 12].

R. v. D.S.F. (1999), 118 O.A.C. 272; 43 O.R.(3d) 609 (C.A.), refd to. [para. 16].

R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 16].

R. v. W.B. (2000), 134 O.A.C. 1; 49 O.R.(3d) 321 (C.A.), refd to. [para. 16].

R. v. N.P.C. (2007), 225 O.A.C. 89; 86 O.R.(3d) 571 (C.A.), leave to appeal refused (2008), 390 N.R. 384; 255 O.A.C. 398 (S.C.C.), refd to. [para. 16].

R. v. P.S. (2007), 223 O.A.C. 293; 221 C.C.C.(3d) 45 (C.A.), refd to. [para. 16].

R. v. Hulan, [1969] 2 O.R. 283 (C.A.), refd to. [para. 19].

R. v. G.L.M. (1999), 128 B.C.A.C. 102; 208 W.A.C. 102; 138 C.C.C.(3d) 383 (C.A.), refd to. [para. 22].

R. v. Kaushal (N.), [1998] O.A.C. Uned. 196; 1998 CanLII 2870 (C.A.), leave to appeal refused (1999), 236 N.R. 392; 120 O.A.C. 399 (S.C.C.), refd to. [para. 23].

R. v. Selles (F.) (1997), 101 O.A.C. 193; 34 O.R.(3d) 332 (C.A.), refd to. [para. 25].

R. v. S.M.R. (2004), 190 O.A.C. 271; 189 C.C.C.(3d) 152 (C.A.), refd to. [para. 28].

Counsel:

Vincenzo Rondinelli, for the appellant;

Christine Tier, for the respondent.

This appeal was heard on June 20, 2008, by Laskin, Rouleau and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Laskin, J.A., on February 2, 2009.