R. v. R.D., 2020 ONCA 23

ADEQUACIES OF JURY CHARGE - AGGRAVATING FACTORS ON SENTENCE - POSITION OF TRUST

RD was convicted by a judge and jury of sexual interference, sexual assault and uttering threats to cause bodily harm against his younger sister, SD. RD appeals his conviction on the basis that the charge to the jury was deficient in two regards: (1) that the trial judge failed to review the inconsistencies between the complainant’s evidence and that of the other witnesses, and failed to relate these to the defence’s theory, and (2) the trial judge did not adequately instruct the jury as to the essential elements of each offence.

The ONCA confirms that the standard required of a jury charge is “adequacy, not perfection.” On appellate review, the adequacy of a jury charge is to be assessed as a whole in the context of the trial (ss R v Newton, 2017 ONCA 496). The trial judge is obligated to distill the relevant evidence and relate it to the issues to be decided by the jury.

(1) Treatment of the Evidence

The appellant alleges that the trial judge unfairly summarized the complainant’s evidence, while glossing over his own testimony. The ONCA rejects this argument as the trial judge did not frame his jury charge as a summary of each individual witness’ testimony excluding the appellant’s testimony. Rather, he framed his charge around the issues to be decided by the jury. In summarizing the complainant’s testimony, the trial judge referenced the accused’s testimony on several occasions to highlight any inconsistencies. 

The ONCA reminds us that while the failure object to a jury charge at trial is not fatal, it is a factor to be considered on appellate review in assessing the seriousness of the alleged error. 

(2) Essential Elements of the Offence

The ONCA reaffirms that a proper jury instruction is one that provides sufficient information to the jury to reach a fair and proper verdict. A jury charge must be tailored to the specific circumstances of the particular case. The trial judge in this case focused his jury charge on the fact that consent was not an issue in the offences at hand. The ONCA concludes that it was appropriate for the trial judge to highlight that consent was not an issue at trial, particularly given the jury’s question related to the role of consent in sexual assault law. Of note, defence counsel at trial did not object to the jury charge and in fact had endorsed the trial judge’s approach during the recharge.

Doherty JA, writing for the court, dismisses both grounds of appeal.

Sentence Appeal

The Crown appeals the accused’s sentence of 3 years on the basis that the trial judge erred in not giving effect to RD’s position of trust with the complainant as an aggravating factor under s. 718.2(a)(iii) of the Criminal Code. The ONCA rejects this ground of appeal and concludes that it was up to the trial judge to find that the Crown had not proven the aggravating fact beyond a reasonable doubt. Despite the brother-sister relationship between the accused and the complainant, and despite their age difference, it was open to the trial judge to conclude that in the circumstances of the case (particularly, given the accused’s intellectual disability) there was no caregiving relationship aggravating the offences.

Doherty JA, writing for the court, dismisses the sentence appeal.